IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.97 of 2006 MOST.KIRAN DEVI Versus THE STATE OF BIHAR & ANR ----------- 4. 18.08.2008 Heard the learned Counsel for the petitioner and the learned Counsel for the respondents. The petitioner who is the widow of the deceased Constable is before this Court seeking payment of compensation. It is her case that her husband on 5.2.2000 had been deputed for duty in the Bihar State Assembly Elections. While he was proceeding to join duty at Muzaffarpur from Sitamarhi on that date he met with an accident at the Sitaharhi Railway Station and died. That formal orders for his deputation on duty at Muzaffarpur for elections had already been issued. That the petitioner was an illiterate and rustic lady and having no knowledge of legal procedure with liability of children and therefore could not come to this Court in time. Counter affidavits have been filed and the prayer has been opposed. The deceased is stated to have died on 5.2.2000 when U.D. Case No. 3 of 2000 was registered. The writ petition has then been filed in December 2005. The explanation given for the delay has noticed above can hardly be considered satisfactory. Whatever sympathy may be there for the petitioner cannot be translated into law. If law be not in her favour questions of equity do not arise. The issue sought tobe urged on behalf of the respondents as to whether the petitioner was on election duty or not looses much of its relevance in view of the police report filed in pursuance of the 2 investigation done in the U.D. Case no. 3 of 2000. Though the writ petition is completely wanting on basic facts with regard to the insurance policy taken out by the State Government for employees deputed for election purpose at the relevant time, this Court has the benefit of a judgement of this Court reported in 2002(2) BLJR 1522, (Kamlawati Devi Vs State of Bihar ands others), on the issue. It has been noticed in Para 14 of the aforesaid judgement that a memo of understanding was signed between the State Government and the Insurance Company for the purpose of election in the year 2000 when employees of the State Government drafted for election purpose were provided with a Group Personal Accident Insurance Cover for which Memorandum of Understanding was signed by the Chief Electoral Officer, Bihar and the representatives of four Insurance Companies on 9.2.2000. The relevant Clause of the insurance cover reads as follows:- “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”. A Bench of this Court (Hon‟ble Mr. Justice Aftab Alam, as his Lordship then was) in a rather illuminating discussion, deciphered a two fold limitation in the insurance clause. Firstly that the death must be accidental and secondly that the accident must have been caused by external violent and any other visible means. The discussion at paragraph 17 of the judgement aptly quoted reads as follows:- “17. A plain reading of the cover clause in the M.O.U. would make it clear that it intended to impose a two-fold limitation. A death in order to qualify for the insurance 3 cover must not only be accidental but the accident causing death must itself result from some external violent and other visible means. This two fold limitation is based on what is called, in the Law of Insurance, the distinction between „accidental result‟ and „accidental means‟. An unexpected and unforeseen consequence or result from a normal or routine activity may constitute an accident but it would not qualify as „accidental means‟. Thus, if a person suffers a fatal heart attack while dancing (considered to be a normal activity) the death may be called „accidental‟ but it would fail to attract the insurance cover because it was not due to „accidental means‟. On the other hand, if a person dies due to heart attack suffered as a result of over-exersion on being chased by a ferocious dog (an unintended occurrence, and not a normal activity) the death might attract the insurance cover as it was caused by „accidental means‟. This, in simple terms, is the distinction sought to be introduced in the cover clause of the M.O.U. with a view to make the application of the insurance cover more restrictive.” The meaning and scope of the words “accident” have been discussed in paragraph 27 and 28 to mean an event which takes place without once foresight or expectation. A result though unexpected, is not an accident. It is means or cause that must be accidental. This Court considers it proper to quote paragraph 28 of the judgment which reads as follows:- “28. 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 4 essential characteristics of an accident as an event which was neither expected nor intended and which causes hurt or loss (Hensey v. White (1990) 1 Q.B.481; Fenton v. Thorley (1903) A.C. 433; Boyle v. Wright (1969) V.L.R. 699; R. v. Pico (1971) R.T.R 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 v. 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 dangerous driving) which was not deliberate and not appreciated but which was nevertheless the immediate cause of event (Chief Constable of West Midlands Police v. Bellingham (1979) 1 W.L.R. 747).” It is only death resulting from an accident, not an act which possibly may have happened as a result of the behaviour of the individual shall be covered by the policy. A death resulting from an act of risk shall not be covered when it is attributed to a mistake, negligence. Coming to the facts of the present case as can be deciphered from the police investigation report in U.D. Case No. 3 of 2000 after recording the statement of witnesses including the driver of the train in question is that the train was pulling into the station from the yard A large number of people were milling around because of which the train was blowing its horn to warn them of its approach. At this stage the deceased tried to cross the railway line in hurry in view of oncoming train. In the hurry his towel fell down. When he turned to retrieve the same, at this he was hit by the engine and died on the spot. 5 To this Court the death of the deceased was not an accident in terms of the discussion as contained in the case of Kamlawati Devi (Supra). The crossing of a railway line by running across the tracks for quick access is not a normal behaviour. Railway tracks are meant for trains to run and not for human beings to run on them or across them. If a person refused to utilize the facilities provided by way of an over bridge to cross a railway track and willingly exposes himself to the risk of injury by running across a railway track it cannot be said that the injury was unforeseen or unintended. Clearly it was the result of a mistake, a neglect or a misconduct. This risk was further aggravated when he saw a train coming, blowing its horn and yet decided to take the risk of running across the railway track confident that his speed of running would be faster than that of the train. Clearly such a person takes a risk of possibility of accident. Once he is appreciative of the risk undertaken surely it cannot be urged that his death was accidental. He took a risk which did not pay off. In that view of the matter, this Court finds it difficult to grant any relief to the petitioner. The writ application is dismissed. Snkumar/- (Navin Sinha,J.)