NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
(Against the order dated
01.11.2006 in Appeal No. 564 of 2005 of the State Commission,
Rita
Devi @ Rita Gupta
W/o
Late Shashi Bhushan Kumar
R/o
Purani Bazar, Mukund Pur
Mahua, P.S. Mahua, Distt.
Vaishali … Petitioner
Vs.
1. National Insurance Co. Ltd.
3,
Kolkata-700071.
2. The General Manager,
National
Insurance Company Ltd.,
Division-3.1,
Shakespeare Sarani
6th Floor, Kolkata-700071.
3. Golden Multi Service Club
C/o Golden Trust Finance Service Ltd,
Kolkata-700001.
4. The Zonal Manager,
Golden Trust Finance Service Ltd.,
Budh Marg,
5. The Manager,
Golden
Trust Finance Service Ltd.
Chandrapura House,
Hajipur,
Vaishali. …
Respondents
BEFORE:
MRS. RAJYALAKSHMI RAO, MEMBER
For the Petitioner Shri Ashutosh
Sharma, Amicus Curiae
For the Respondent 1 & 2 Shri Sanjay V
For the Respondent 3,4 & 5 Ms
M Noor, Advocate
Ms Anisha Singh, Advocate
Dated
M.B. SHAH, J., PRESIDENT.
N
The
only question which requires consideration is: “whether the death caused by
‘cold wave’ is considered to be an ‘accidental death’ for the purpose of
insurance cover”?.
In our view, for the purposes of insurance cover death caused by ‘cold wave’ is accidental death.
Law on the issue:
For this purpose, at the outset, we would refer to the following paragraph from Halsbury’s Laws of England (4th Edition, 2003 Reissue, Insurance, 569 and 570) and also the decisions of the Patna High Court in Kamlawati Devi vs State of Bihar and Others 2002 (3) BLJ 26; and 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:
In the Halbury’s Laws of England, the meaning of the word ‘accident’ is given and also ‘accidental death’ in case of exposure to natural elements as stated to be accidental death.
“569. 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 as ‘injury
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.
….
571. 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
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.
Facts:
This
revision petition is filed against the judgment and order dated
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.
Findings.
It
is undisputed that because of the severe cold wave a number of persons died at
various places in the State of
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
“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 means’ have 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 attempted distinction between accidental results
and accidental means will plunge this branch of the law into a Serbonian Bog.
Probably it is true to say that in the strict sense and dealing with the
region of physical nature there is no such thing as an accident. On the other
hand, the average man is convinced that there is and/ so certainly is the man
who takes out a policy of the accident insurance. It is his reading of the
policy that is to be accepted as our guide, with the help of the established
rule that ambiguitios and uncertainties are to be
resolved against a company……. The proposed distinction will not survive the
application of that test.’
When a man has died in such a way that his death is
spoken of as an accident, he has died because of an accident, and hence by
accidental means. So Court of high authority have held…….”
The dissenting opinion of Cordozo J in Landress had great influence on the development of this branch of the law of insurance in the different states in the U. S. Scales Adams F. in his essay “Man God and the Serbonian Bog: The Evaluation of Accidental Death. Insurance” 86 Iowa L Rev. 173 nicely summed up the effect of Cordozo’s dissent in the following words:
“Cardozo’s dissent might have
been merely an elegant footnote in the history of accidental death insurance
but then a funny thing happened: the
(Emphasis
added)
The dissenting opinion of Cardozo J in Landress and its effect on subsequent decisions by Courts
have also been discussed in Mac Gillivray on
Insurance Law, Fifth edition, Vol. II, pages 787,788. The relevant passage is
as follows:
“Divergence in modern American authorities. In Landress vs The
If the view propounded by Cardozo J is to be
followed which indeed commends itself to the very strongly, then nothing more
is required because no one can deny that the death of Parshuram
Singh was the result of an accident and was an accidental death.
But let us also examine the other view in which though the distinction
between accident result and accidental means is formally maintained, the key
restrictive words like accident, external, violent and visible means are
attributed a very broad and unrestricted meanings.
Let us first take the word ‘Accident”. Back’s Law Dictionary, seventh edition defines accident to mean as follows:
“accident 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, adj.
“The word 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. “1 – A John Allan Appleman & Jean Appleman, Insurance Law and Practice: 360 at 455 (rev. vol. 1981).
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: the degree of forseeability, and (2), the state of mind of the actor in intending or not intending the result.” John F Dobbyan, Insurance Law in a Nutshell 128 (3d ed. 1996).
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 (Her sey vs White (1990) 1 Q B 481; Fenton vs Thorley (1903) A C 433; Boyle vs Wright (1969) V L R 699; R vs Pico (1971) RTR 500).
“In deciding for the purposes of an insurance policy whether an event was ‘accidental’ a distinction has to be made whether the cause was the deliberate taking of an appreciated risk, and therefore, not accident (Gray vs Barr (1971) 2 Q B 554, where a person intending to scare another with a gun shot him; held not accident), and cases where the cause (such as excessive drinking) although a deliberate act, led to the taking of a risk (such as dangerous driving) which was not deliberate and not appreciated but which was nevertheless the immediate cause of the event (Chief Constable of West Midlands Police vs Bellingham (1979) 1 W L R 747)”.
In Mackinnon Mackenzie & Co. vs Ritta Farnandes, 1969 ACJ 419 (a case arising under the Workmen’s Compensation Act) the Supreme Court held that even if a workman died from a pre-existing disease, if the disease was aggravated or accelerated under the circumstances, his death results from injury by accident. In taking this view the Supreme Court noticed with approval a decision of the House of Lords in Clover Clayton & Co. vs Hughes, 1910 AC 242.
Coming now to the word ‘external’ used in the expression ‘accident caused by external violent and any other visible means’, it is described in Stroud’s as follows:
“EXTERNAL – In an insurance against bodily injury caused by violent, accident, external and visible means” but excepting ‘natural disease, or weakness or exhaustion consequent upon disease” ‘external’ is used in contradistinction to such unnatural cases as disease or weakness.”
The next word is ‘violent’ and violence is defined by Black’s as follows:
“Unjust or unwarranted use of force, usually accompanied by fury, vehemence or outrage; physical force unlawfully exercised with the intent to harm. Some Courts have held that violence in labour dispute is not limited to physical conduct or injury, but may include picketing conducted with misleading signs, false statements, erroneous publicity, and veiled threats by words and acts.”
If in labour disputes the expression violence may include veiled threats by words and acts, I see no reason why plain and open threats by armed miscreants may not come within the meaning of the word ‘violent’.
Next the word ‘visible’ is defined by Black’s to mean:
“Visible, 1. Perceptible to the eye discernable by sight, 2. Clear, distinct, and conspicuous.”
In the Law of Insurance by Raoul Colinvaux (Fifth edition), discussing the true meaning of the expressions “violent, external and visible”, the author points out that in a large number of cases though the policies insured against bodily injury caused ‘by violent, accident external and visible means only’, the decisions turned mainly on the question whether or not the particular injury was caused by accidental means:
“That was because such words as ‘violent’, ‘external’ and ‘visible’ have been given wide meanings, practically co-extensive with ‘accident’.
“Thus, ‘violent’ does not necessarily imply actual violence as where the assured is bitten by a dog. ‘Violent means’ include any external, impersonal cause, such as drowning, or the inhalation of gas or even undue exertion on the part of the assured. The word ‘violent’ is merely used in antithesis to ‘without any violence at all’.
‘Similarly ‘external’ is used to express anything which is not ‘internal’ and any cause which is ‘external’ in this sense is also ‘visible’ within the meaning of an accident policy. These words refer to the accident, not the injury, and are used to distinguish injuries covered by the policy from those due simply to such causes as disease or senllity which arise in the body of the deceased.
Thus the words, ‘by violent, external and visible means’ add little if anything, to an accident policy and have been adversely criticize by the Court of appeal.” (Re: United London and Scotish Insurance, Brown’s claim (1915) 2 Ch.167).”
In the light of the above there can be no denying that the death of Parshuram Singh was an accidental death caused by accidental means. If the view expressed in the book, the Law of Insurance that the words ‘by violent external and visible means’ add little if anything to an accident policy is to be accepted, then his death would attract the insurance cover without anything else. But even if the applicability clause in the MOU is to be given a literal interpretation and the distinction between accidental result and accidental means is to be maintained, I come to the unescapable conclusion that the act of threatening by the armed miscreants was plainly covered by the expression ‘external violent and any other visible means’ and the deceased encountering those threats while he had gone to relieve himself was clearly an accident that triggered off the heart attack and, thus, resulting solely and directly into his death. It appears to me, therefore, that the death of the petitioner’s husband was fully covered by the cover clause in the MOU.
I would like here to briefly examine some of the cases in which the Courts held that the death was covered by the insurance policy even while maintaining the distinction between accidental death and death by accidental means.
In Brown vs Metropolitan Life Ins. Co. (1959, Mo) 327 SW 2d 252, the Court held that the evidence was sufficient for the jury to conclude that the insured’s death from a coronary occlusion was effected by accidental means, even though the insured suffered from pre-existing coronary seterosis and a old myocardial infraction, where the insured was subject to emotional stress from a verbal assault and an actual physical assault by another person. The Court said that if an accident sets in motion agencies that result in death, such injury is regarded as the sole, direct and proximate cause of death, even though the injured person was suffering from physical infirmity or disease.
In Bankers’ Health & Acci. Co. Vs Shadden (1929, Tex Civ. App.) 15 SW 2d, 704, the insured, a man 50 years of age, in good health, and long a United States mail carrier by occupation, being unable on a cold morning to start his Ford Car by means of the self-starter, undertook to crank it in the usual manner, consuming approximately an hour in hour in doing so, and in the course of his deliveries immediately afterwards, he experienced great discomfort became suddenly worse and declined until he died, before returning from the trip from dilation of the heart due to the strain and exertion involved.
In Railway Mail Ass’n vs Forbes (1932 Text Civ. App) 49 SW 2d 880, the death of an insured resulted directly, independently, and exclusively of all other causes from a strain on his heart received in lifting a mail sack in the course of his employment, and upon evidence that employee had no heart disease prior to the time of the alleged injury which was or could have been a contributory cause of his death.
In Commercial Travelers Ins. Co. vs Walsh (1955 CA – 9 Wash) 228 F 2d 200, 56 ALR 2d 796, the insured, while engaged in receiving heavy sacks of grain when slid down a plank from a truck to the loading floor, instinctively grabbed one and held it for a moment upon seeing that it was about to slip off the plank, thereby straining himself so that he suffered a coronary occlusion. The Court said that although the insured’s action in reaching for the slipping sack was unintentional in the instant case, where an insured does a deliberate act and the exertion causes a heart attack; it cannot be held that the death was caused by accident means.
In Carrothers vs Knights of Columbus (1973) 10 III App 3d 73d, 295 NE 2d 307) the insured suffered an acute myocardial infaraction and died approximately 50 minutes after engaging in an altercation in a parking lot during which he was struck and his face slashed with a knife, the Court saying that the fatal heart attack was an unforeseen and unexpected result of the stress and activity engendered by the altercation.
In the light of the discussions made above, it plainly appears to me that looked at from any point of view (whether with or without maintaining the distinction between accidental result/ death and accidental means), the death of Parshuram Singh, the husband of the petitioner will be covered by the policy. The stand of the insurance company that his death was not covered by the insurance because there was no bodily injury on his person is plainly misconceived and I am afraid it must be said that the insurance company does not seem to fully realize the correct meaning of the cover clause in the MOU.
In the L.P.A the
Division Bench in the case of Branch Manager, United India Insurance Company vs State of
In addition the
Court has quoted a passage from ‘Law of Insurance by Raol
Colinvaux (Fifth Edition)
discussing the effect and impact of the expression ‘violent, external;
and visible which is as under:
That was because such words as ‘violent’, ‘external’ and ‘visible’ have been given wide meanings, practically co-extensive with ‘accident’.
“Thus, ‘violent’ does not necessarily imply actual violence as where the
assured is bitten by a dog. ‘Violent means’ include any external, impersonal
cause, such as drowning, or the inhalation of gas, or even undue exertion on the part of
the assured. The word ‘violent’ is merely used in antithesis to without any
violence at all.”
“Similarly ‘external’ is used to express anything which is not
‘internal’ and any cause which is ‘external’ in this sense is also ‘visible’
within the meaning of an accident policy. These words refer to the accident,
not the injury, and are used to distinguish injuries covered by the policy from
those due simply to such causes as disease or senility which arise in the body
of the deceased.”
“Thus the words ‘by violent, external and visible means’ add little if
anything to an accident policy and have been adversely criticized by the Court
of appeal. (Re: United London and Scottish Insurance, Brown’s
claim (1915) 2 Ch. 167).
In our opinion , in each of the matter the
Insurance Company cannot be allowed to gain say that the death was not an
accidental death as a result of external violent and visible means.
In the matter of Rajanibai Jamnadas
Chamsey vs New India
Assurance Co Ltd; AIR 1956 Bombay 633 while interpreting the words, Hon’ble Mr Justice Desai as he then was, has observed that:-
“If I found myself compelled to accept the construction and meaning
urged on behalf of the insurers I should not have hesitated to use the
off-quoted words of Lord Esher in Cole vs Accident Insurance Co. (1899) 5 T L R 736 (B) where it
was said; “I hold that this is a policy not to be praised and people ought to
be warned against insuring under policies in that form”. And even if I had felt
that there was ambiguity in the policy I should have followed the rule that
words ought to be construed “contra proferentes” and
held that the insurers should be held liable because they had not clearly
exempted themselves.”
His Lordship also
observed -
“But I am unable to read the clause as Mr Mody would want me to do. The way I read the clause is that
death of the assured must be caused by bodily injury solely and directly
accidental and this must be caused by outward violent and visible means.
Indubitably in this clause there is an attempt to define the event assured
against by a form of words common in Insurance policies of this nature.”
But the words in my judgment aim only to emphasize that the death must
not only be accidental; it must be caused by violent, external and visible
means. These expressions, violent, external, and ‘visible’ have come up for
consideration before the Courts in England and it has there been held that the
word ‘violent’ is used in this connection to express antithesis to ‘without any
violence at all’, the word ‘external’ expressed antithesis to ‘internal’. Any
cause which is not internal must be external. The injury need not be external.
There may be nothing on the surface of the body to disclose its existence. The
word is intended to make it clear that causes such as disease which may arise
within the body of the assured are excluded from the scope of the policy”.
“The decisions of Courts of England are to be found quoted and
summarized in Halsbury’s Laws of England (2nd
Edition) Vol. 18 at page 535, para 849, to which my
attention was drawn by learned Counsel on either side. It is there stated that
where the actual cause of the injury is external the fact that it is brought
into operation by some internal cause has to be disregarded. Thus, if the
assured is seized by a fit and is drowned or falls in front of a train and
killed death is due to external cause.”
“As to visible” it has been
held in
“It is also clear that in
most of the cases cited in support of the above statement of law from Halsbury’s Laws of
‘Springs of human action do not always flow
from sources influenced by prudence and caution’ are in fact the key words for
appreciating the present conditions and the election conditions in special. One
who knows the reality would not close his eyes from it but the one sitting in
the ivory tower would always talk of the deteriorating conditions and would always
go in search of eldorado. This is the high time to
say that everything which glitters is not gold and every transparent stone
which shines is not a diamond”.
From the
aforesaid law developed in other countries and in this country, it is clear that
the injury or death caused
by lightening, sun-stroke or earthquake has been held to be accidental. Further, where a man in the course of his
work is exposed to excessive heat coming from a boiler and becomes exhausted and death occurs, it
would be an accidental death.
Similarly, a person working in a icy cold water and thereafter, sustains
pneumonia which causes his death, such death is also considered to be an
accidental death. Similarly, if
the assured is
seized by a fit and drowns or falls in front of a train and killed, death is
due to external cause and is an
accidental death. Death resulting from
the threats by miscreants is also
considered to be an accidental caused by external violence and visible means. In substance, death which does not occur in the usual course or natural course of
events or events/causes which could not
be reasonably anticipated is considered to be accidental one. Death due to cold wave is not natural and it would be accidental
because all the persons may not get the
same effect and it is by natural
external violent force. Further, ‘cold wave’ is an untoward event
which is not expected or designed, and an ordinary man could not expect the
occurrence.
Hence,
it is apparent that the death of the husband of the petitioner is covered under the Janta Accidental Insurance Policy issued by the Respondent
No.1. It is to be stated that in the
present case, cold wave was sudden and due to that a number of persons including the husband
of the petitioner suffered massive heart attack as a result of which he
died. This undisputed fact was reported in
various news papers.
In the result,
the revision petition is allowed and the Insurance Company – respondent No.1 is
directed to pay the assured a sum of Rs.3.00 lakhs with interest @ 12% p.a.
from
Respondent No. 3, 4 and 5 shall also
pay Rs.10,000/- as costs to the petitioner because
they have not rendered any assistance to the complainant in recovering the
money from the Insurance Company.
We appreciate
the assistance rendered by the Amicus Curiae, Shri Ashutosh Sharma, in this
case. The Registry is directed to pay Rs.5000/- to Shri Sharma, from the “Consumer
Legal Aid Account”.
Sd/-
…………………………..J.
(M.B. SHAH)
President
Sd/-
………….…………….……
(RAJYALAKSHMI RAO)
Member