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2008(1) CPR 96(NC)
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
M.B. Shah, President and Mrs. Rajyalakshmi Rao, Member
Rita Devi @ Rita Gupta —Petitioner
versus
National Insurance Co. Ltd. and Ors. —Respondents
Revision Petition No. 973 of 2007
Decided No. 24.10.2007
Held: In our view, for the purposes of insurance cover death caused by ‘cold wave’ is accidental death. (Para 2)
For this purpose, at the outset, we would refer to the following paragraph from Halsbury’s Laws of England(4th Edition, 2003 Re-issue, Insurance, 569 and 570) and also the decisions of the Patna High Court in Kamlawati Devi v. State of Bihar and Ors., 2002(3) BLJ 26; and Branch Manager, United India Insurance Company Ltd., Biharshariff at Nalanda with National Insurance Company and Ors. v. The State of Bihar and Ors., 2003(2) BLJ 407.(Para 3)
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. v. Kokilaben Chandravadan & Ors.,(1987) 2 SCC 654; Shashi Gupta v. LIC of India, 1995(1) SCC 754; B.V. Nagaraju v. M/s Oriental Insurance Co. Ltd., 1996(4) SCC 648 and LIC v. Raj Kumar Rajgarhia and 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.(Paras 5 and 6)
(ii) Consumer Protection Act, 1986—Sections 21(b) and 21(1)(g)—Revision against appellate order of Bihar State Commission—Complaint about deficiency in insurance service—Assured had taken ‘Group Janata Personal Accident Insurance Policy’ for Rs. 3 lacs—Died due to extreme cold wave in Vaishali District of Bihar on the New Year Day 1.1.2004—Cold wave deaths reported in newspaper—District Forum dismissed the claim on ground that death of the assured due to cold wave would not be an accidental death—Affirmed in appeal by Bihar State Commission, ignoring decisions of Patna High Court—Whether correct?(No)—Revision allowed—Case Law referred—Insurance Co. directed to pay Rs. 3 lacs with costs.
Held: 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. (Para 9)
Held Further: From the aforesaid law developed in other countries and in this country, it is clear that the injury or death caused by lightning, 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 an 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 newspapers. (Paras 41 and 42)
Held Consequently: 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.3,00,000 with interest @ 12% p.a. from 1st July, 2004(i.e. after six months from the date of accident) till its payment. Insurance Company shall also pay the cost of litigation which is quantified at Rs.10,000 to the petitioner. (Para 43)
Held Also: Respondents 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. (Para 44)
Held in addition: We appreciate the assistance rendered by the Amicus Curiae, Shri Ashutosh Sharma, in this case. The Registry is directed to pay Rs.5,000 to Shri Sharma, from the “Consumer Legal Aid Account”. (Para 45)
Result: Revision allowed accordingly.
M.B. Shah, President—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”?
2. In our view, for the purposes of insurance cover death caused by ‘cold wave’ is accidental death.
Law on the issue
3. For this purpose, at the outset, we would refer to the following paragraph from Halsbury’s Laws of England(4th Edition, 2003 Re-issue, Insurance, 569 and 570) and also the decisions of the Patna High Court in Kamlawati Devi v. State of Bihar and Ors.1 and Branch Manager, United India Insurance Company Ltd., Biharshariff at Nalanda with National Insurance Company and Ors. v. The State of Bihar and Ors.2
4. 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 wilful 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 ‘can 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.
5. 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. v. Kokilaben Chandravadan & Ors.3; Shashi Gupta v. LIC of India4; B.V. Nagaraju v. M/s Oriental Insurance Co. Ltd.5 and LIC v. Raj Kumar Rajgarhia and Anr.6
6. 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:
7 .This revision petition is filed against the judgment and order dated 1st November, 2006 passed by the State Consumer Disputes Redressal Commiss
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