Case: THE BRANCH MANAGER NATIONAL INSURANCE CO. LTD Vs. MOUSUMI BHATTACHARJEE

2. Debashis Bhattacharjee, the spouse of the first respondent and the father of the second respondent applied for a housing loan for an amount of Rs. 13.15 lacs from the Bank of Baroda on 16 June 2011. The loan was sanctioned and was repayable in 113 monthly installments, each of Rs. 19,105/-. Incidental to the loan, he availed of the facility of an insurance scheme calledInsurance Home Loan SurakshaOn 25 August 2011, a policy was issued to cover the loan amount of Rs. 13.15 lacs with a term of 20 years commencing on 25 August 2011. A single premium was paid against the policy. The policy was a non-life insurance product intended to provide insurance security to a person who obtains a loan for constructing, purchasing or repairing a residential house, flat or apartment. Section I of the policy insured the house against fire and allied perils, including earthquakes. Section II insured the borrower against personal accidents. 3. The insured was working as a Manager of a Tea Estate in Assam. He thereafter took up employment in 2012 as a Manager of a Tea Factory at Cha-DeMagoma, District Gurue, Province-Zambezia, Republic of Mozambique. During his stay in Mozambique, the insured was admitted to the hospital on 14 November 2012. He was diagnosed with encephalitis malaria and died on 22 November 2012 due to multi-organ failure. His death certificate issued by the Republic of Mozambique spelt out the conditions and causes of death thus:The heirs of the deceased filed a complaint under the Consumer Protection Act 1986 before the District Consumer Disputes Redressal Forum , North 24 PGS, Barasat alleging that the insurer had committed a deficiency of service in not settling the claim under the insurance cover. In the written statement filed by the appellant, it set up the plea that Section II of the policy insured the borrower of the loan against personal accident. Death due to malaria caused by a mosquito bite was, in the submission of the insurer, a result of an infection or disease and was not an accidental death under the terms of the insurance policy. 5. By an order dated 28 February 2014, the District Forum allowed the claim and called upon the insurer to pay the entire outstanding EMIs in respect of the loan to the Bank of Baroda. A statutory appeal was filed by the appellant before the State Commission. The State Commission by its order dated 2 February 2016 affirmed the order of the District Forum, holding that adeath due to mosquito bite in a foreignwas an accident; it would be rather silly to say that it was a natural death. The order of the State Commission was assailed in revision before the National Commission. The National Commission observedhas not been defined in the policy which the deceased had taken and therefore contextual dictionary meaning of the said term 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 is not planned in advance. It is defined as (i) as unpleasant event, especially in a vehicle, that happens unexpectedly and causes injury or damage, (ii) something that happens unexpectedly and is not planned in advance, in the Oxford AdvancedDictionary (New 8th Edition). The wordis defined as (i) as accident, an unforeseen injuries occurrence, something that does not come in the usual course of event or that cannot be reasonably anticipated, (ii) an unforeseen and injurious occurrence due to mistake, negligence, neglect or misconduct; an unanticipated and untoward event that cause(s) harm (InLaw Dictionary (Ninth. On whether a death as a result of encephalitis malaria was an accident, the National Commission held: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. In Consumer Complaint No. 223 of 2006, Shri Matber Singh versus Oriental Insurance Co. Ltd. decided on 05.09.2014, this Commission noted that as per the information available on the website of the Insurance Company, an 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

Reasoning: 11. In our view, it would be appropriate to approach the issue which has been raised in the present case as a matter of interpreting the conditions contained in the insurance policy.In order to constitute an accident, the event must be in the nature of an occurrence which is unnatural, unforeseen or unexpected. The present case concerns death caused due to a disease being contracted. Section II of theinsurance policy covers death caused by accident. Death or injury from accident caused by insanity or venereal disease has been specifically excluded and not covered under the policy.treatises extracted above construe accidents and diseases as distinct concepts. Baker Welford regardsas a term which does not include disease in the ordinary course of events. Colinvaux acknowledges that a disease caused as a proximate cause of an accident will be covered by a policy for personal accident, in the absence of an exclusion. But then it is also argued that the term accident does not include disease. 15. Courts across international jurisdictions - including in the UK, US and Canada have interpreted the termThere is a fine distinction between the occurrence of a disease which may be considered as an accident and a disease which occurs in the ‘natural course ofIn 1861, theBench Division Sinclair v Maritime Passengers Assurance (1861) 3 E&E 478in the UK was called upon to consider whether a sunstroke suffered by a person while on board a ship in the course of performing his ordinary duties would amount to an accident.As the law of insurance has developed, there has been 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. This understanding of what is an accident indicates that something which arises in the natural course of things is not an accident. This is the basis for holding that a disease may not fall for classification as an accident, when it is caused by a bodily infirmity or a condition. A person who suffers from flu or a viral fever cannot say that it is an accident. Of course, there is an element of chance or probability in contracting any illness. Even when viral disease has proliferated in an area, every individual may not suffer from it. Getting a bout of flu or a viral illness may be a matter of chance. But a person who gets the flu cannot be described as having suffered an accident: the flu was transmitted in the natural course of things. To be bitten by a mosquito and be imbued with a malarial parasite does involve an element of chance. But the disease which is caused as a result of the insect bite in the natural course of events cannot be regarded as an accident. Particularly, when the disease is caused in an area which is malaria prone. On the other hand, there may well be instances where a bodily condition from which an individual suffers may be the direct consequence of an accident. A motor car accident may, for instance, result in bodily injuries, the consequence of which is death or disability which may fall within the cover of a policy of accident insurance. Hence, it has been postulated that where a disease is caused or transmitted in the natural course of events, it would not be covered by the definition of an accident. However, in a given case or circumstance, the affliction or bodily condition may be regarded as an accident where its cause or course of transmission is unexpected and unforeseen.19. Recently, in Gloria Wells v Minnesota Life Insurance Company No. 16-20831 (5th Cir. 2018) , the United States Court of Appeals, Fifth Circuit, dealt with a case where the question of law before the court was whether death caused by a bite of a mosquito carrying West Nile Encephalitis virus in Texas was covered under an accidental death insurance policy. The Court while remanding the case to the lower court on the disputed issue of facts, observed that the determinate, single act of a mosquito bite was not incidental to a body process and the mosquito, an external force produced an unforeseen result. However, this may be distinguished from the facts in the present case. Malaria is most commonly transmitted to humans through malaria virus infested mosquito bites, and when a virus is contracted through normal means brought about by everyday life it cannot be deemed to be an unexpected or unforeseen accident.20. 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 vectorborne disease. The submission is that being bitten by a mosquito is an unforeseen eventuality and should be regarded as an accident. We do not agree with this submission. The insured was based in Mozambique. According to the World HealthWorld 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.