Death due to cold wave is accidental and insurance companies cannot deny claim to the family of the deceased

RITA GUPTA V/S NATIONAL INSURANCE CO. LTD., & OTHERS
REVISION PETITION NO.973 OF 2007
DECIDED ON, 24 OCTOBER 2007
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NCDRC

HELD THAT

The death caused by extreme cold wave is accidental one and the insurance companies cannot deny claim to the family of the deceased on the ground that the demise was natural. "Cold wave is an untoward event which is not expected ordesigned, and an ordinary man could not expect the occurrence”.

MEANING OF ACCIDENT

The event insured against may be indicated in the policy solely by reference to the phrase injury by accident or the equivalent phrase accidental injury, or it may be indicated asinjury caused by or resulting from an accident.

The word accident, or its adjective accidental, is no doubt used with the intention of excluding the operation of natural causes such as old age, congenital or insidious disease or the natural progression of some constitutional physical or mental defect; but the ambit of what is included by the word is not entirely clear. It has been said that what is postulated is the intervention of some cause which. is brought into operation by chance so as to be fairly describable as fortuitous.

The idea of something haphazard is not necessarily inherent in the word; it covers any unlooked for mishap or an untoward event which is not expected or designed, or any unexpected personal injury resulting from any unlooked for mishap or occurrence. The test of what is unexpected is whether the ordinary reasonable man would not have expected the occurrence, it being irrelevant that a person with expert knowledge, for example of medicine, would have regarded it as inevitable. The stand point is that of the victim, so that even willful murder may be accidental as far as the victim is concerned.

EXPOSURE TO ELEMENTS

Even where there are no antecedent circumstances which can be separately visualized and described as an accident, the results to the victim may nonetheless be accidental. Injury or death caused by lightning, sunstroke or earthquake has been held to be accidental. Similarly, where a man in the course of his work is exposed to excessive heat coming from a boiler and becomes exhausted or has to stand in icy cold water and sustains pneumonia or, having got overheated, is exposed to a draught resulting in pneumonia or sustains sub-acute rheumatism as a result of baling out of a flooded mine, his injuries have been held to be accidental.

Further, it is settled law that when two reasonable interpretations of the terms of the policy are possible, the interpretation which favours the insured is to be accepted and not the interpretation which favours the insurer.

Further, the terms of the insurance policy are drafted one-sided by the Insurance Company. Therefore, in case the terms of the policy are vague, benefit should be given to the insured and not the insurer.

The law on the subject is settled by the Apex Court in Skandia Insurance Co. Ltd. Vs. Kokilaben Chandravadan & Ors. (1987) 2 SCC 654; Shashi Gupta Vs.LIC of India (1995) 1 SCC 754; B.V.Nagaraju Vs. M/s. Oriental Insurance Co. Ltd. (1996) 4 SCC 648; and, LIC Vs. Raj Kumar Rajgarhia & Anr. (1999) 3 SCC 465.

In this case, because of the cold wave a number of persons died. Death was due to exposure of natural events. Accident is caused by external violent means. Cold wave not only took the toll of the insured but also a number of other persons.

BRIEF FACTS

• This revision petition is filed against the judgment and order dated 01st November, 2006 passed by the State Consumer Disputes Redressal Commission, Bihar in Appeal No. 564 of 2005, by the petitioner wife of the assured.
• The assured had taken Group Janata Personal Accident Insurance Policy for a sum of Rs.3,00,000/-, from the respondent National Insurance Company Ltd., through Golden Multi Services Club of G.T.F.S respondent Nos. 3, 4 and 5.
• The validity of the insurance cover was from 15th February, 2001 to 14th February, 2006.
• The insured, aged 37 years, died on the New Year day i.e. 01st January, 2004, because of extreme cold wave. As the sum assured was not paid, the wife of the assured filed case No. 102 of 2004 before the District Forum, Vaishali, Hajipur, Bihar.
• That complaint was dismissed by the District Forum by order dated 18th August, 2005, solely on the ground that death of the assured caused due to cold wave would not be an accidental death.
• The State Commission, in appeal, confirmed that finding. Hence, this Revision Petition by the Petitioner/Complainant.
• Learned Amicus Curiae Shri Sharma, appearing for the Petitioner, vehemently submitted that the State Commission has not followed the well-reasoned two judgments of the Patna High Court, which were cited before the State Commission.
• In our view the order passed by the State Commission without referring to the well-reasoned judgments rendered by the Patna High Court, is totally erroneous.

OBSERVATIONS & DECISION OF APEX COURT

• It is undisputed that because of the severe cold wave a number of persons died at various places in the State of Bihar including Purani Bazar Mahua, Vaishali, as per the newspaper reports which are produced on record. We are not referring to the said newspaper reports. This aspect is undisputed.
• Dealing with the similar contention, the Patna High Court in Kamlawati Devi vs State of Bihar and Others 2002 (3) BLJ 26; and in the case of Branch Manager, United India Insurance Company Ltd., Biharshariff at Nalanda with National Insurance Company and others vs The State of Bihar and Others 2003(2) BLJ 407, has discussed exhaustively in which set of circumstances the case would be accidental death caused by external violent and any other visible means. Both the judgments refer to various decisions rendered by different Courts.
• We would first refer to the judgment rendered by the Learned Single Judge in the case of Kamlawati Devi (Supra). In that case also the question came up for consideration was whether the death of the husband of the complainant (petitioner), who was on election duty, can be said to be resulting solely and directly from accident caused by external violent and any other visible means.

In that case it was pointed out that the husband of the complainant who was on election duty in a village, went to the bank of the river Gandak, flowing by the side of that village, for relieving himself. He came back deeply agitated, frightened and reported to his colleagues that on the bank of the river he had encountered armed miscreants who threatened him with dire consequences if the polling team did not help and cooperate with them during the election on the following day.

At about 09.00 P.M. he developed pain in the chest and was sent to the village hospital. Thereafter he came back to the school and died due to heart failure at mid-night. The insurance claim which was made was rejected.

Hence, a writ petition was filed before the High Court. The Court allowed the writ petition and observed that the death of the insured was caused due to heart failure and the act of threatening by the armed miscreants was plainly covered by the expression external violent and any other visible means.In that case also a Memorandum of Understanding (MOU) was executed between the State of Bihar and the Insurance Company whereby after receiving the premium, the MOU provided that in the event of death due to accident while performing election duty the amount of compensation payable would be Rs.10 lakhs in the case of the person belonging to category A. The scope of cover is given under policy.

The insurance is intended to provide for the payment of compensation in the event of death only resulting solely and directly from accident caused by external violent and any other visible means.

To understand the discussion on this aspect, relevant parts of paras 18 to 42 are reproduced below:

The question, however, is over the years the Courts have understood and interpreted the restricted cover clause in the insurance policy.

On examining this brand the law of insurance one finds a series of decisions which tend to do away with the distinction between accidental result/ death and accidental means. One also finds another set of decisions which though maintaining the formal distinction between accidental result and accidental meanshave so interpreted the key words in the restrictive clause (eg. Accident, external violence and any other means etc.) as to greatly relax the rigours of the ordinary meanings of those words.

Of the cases in which the distinction between accidental result/ death and accidental means was sought to be done away with a fine example is to be found in the U S Supreme Court decision in Landress vs Phoenix Mut. L Ins. Co (1993) 291 U S 491. In Landress the judicial view that there was no distinction between accidental death and accidental means found one of its most forceful expressions in the dissenting opinion of Cordozo, J.Landress was a case of death by sunstroke. The insured while playing golf one day, fatally succumbed to the heat. His beneficiary claimed compensation under the Insurance policy on the ground that the layman regarded death from sunstroke as accidental death. The majority decision of the Court rejected the claim and held that the claimant must demonstrate something unforeseen or unexpected in the act itself: For here the carefully chosen words defining liability distinct between the result and external means which produces it. The insurance is not against any accidental result.

However, Cordozo J dissented from the majority and in his dissenting opinion observed as follows:

Sunstroke though it may be a disease according to the classification of physicians, is nonetheless an accident in the common speech of men. The suddenness of its approach and its catastrophic nature, have made the quality stand out when thought is uninstructed in the mysteries of science. Violent it is for the same reason, and external because the train of consequences is set in motion by rays of the sun beating down upon the body, a cause operating from without.

The NCDRC considered meaning of word “ Accident”;

LET US FIRST TAKE THE WORD ACCIDENT

Back's Law Dictionary, seventh edition defines accident to mean as follows:

1. An unintended and unforeseen injurious occurrence; something that does not occur in the usual course of events or that could not be reasonable anticipated. 2. Enquity, practice. An unforeseen and injurious occurrence not attributable to mistake, neglect or misconduct-accident.

In accident policies means an event which takes place without one's foresight of expectation. A result, though unexpected, is not an accident; the means or cause must be accidental. Death resulting from voluntary physical exertions or from intentional acts of the insured is not accidental, nor is disease or death caused by the vicissitudes of climate or atmosphere the result of an accident; but where, in the act which precedes an injury, something unforeseen or unusual occurs which produces the injury, the injury results through accident.

Policies of liability insurance as well as property and personal injury insurance frequently limit coverage to losses that are caused by accident.

In attempting to accommodate the layman's understanding of the term, Courts have broadly defined the word to mean an occurrence which is unforeseen, unexpected, extraordinary, either by virtue of the fact that it occurred at all, or because of the extent of the damage.

An accident can be either a sudden happening or a slowly evolving process like the percolation of harmful substance through the ground.

Qualification of a particular incident as an accident seems to depend on two criteria:

1. the degree of forsee ability, and
2. the state of mind of the actor in intending or not intending the result.

Stround's Judicial Dictionary of Words and Phrases, sixth edition defines accident as follows

Accident; Accidental; Accidentally. The Courts have established a long line of cases which identify the essential characteristics of an accident as an event; which was neither expected nor intended and which causes hurt or loss .

DECISION

13. The National Consumer Commission has held that the death caused byextreme cold wave is accidental one and the insurancecompanies cannot deny claim to the family of the deceasedonthe ground that the demise was natural.

"Cold wave is an untoward event which is not expected ordesigned, and an ordinary man could not expect the occurrence.

For the purposes of insurance cover, death caused by cold waveis accidental death.Broadening the definition of accidental deaths, thecommission said, "a person, who works in an icy cold water anddies after sustaining pneumonia, such death is also considered to be accidental death."

For the purposes of insurance, injury or death, caused by lightening, sun-stroke, earthquake, cold and heat wave, isaccidental one, it added.