Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal  No 2614 of 2019 (@SLP(C) No. 4297 of 2017)

The Branch Manager  National Insurance Co. Ltd.                                                          …Appellant

Versus

Smt. Mousumi Bhattacharjee & Ors.                        …Respondents

J U D G M E N T

Dr Dhananjaya Y Chandrachud, J.   

1 The present appeal raises an interesting question of law. The Court is tasked

with determining whether a death due to malaria occasioned by a mosquito bite in

Mozambique, constituted a death due to accident. The appeal by the insurer has

been  filed  against  the  judgment  of  the  National  Consumer  Disputes  Redressal

Commission1, which upheld a decision of the State Consumer Disputes Redressal

1 “National Commission”

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Commission2.  The State Commission, in first  appeal,  had upheld the award of a

claim under an insurance policy.  

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 called “National Insurance Home

Loan Suraksha Bima”. On 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-De-

Magoma, 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:

2 “State Commission”

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“VII. Conditions and causes of death    56. Causes of the Death WRITE ONE DIAGNOSIS PER LINE      Direct cause a) Multi organ failure       Intermediary cause b) Encephalitis Malaria      Basic Cause c) Pnasituria – Malaria.”

4 The heirs of the deceased filed a complaint under the Consumer Protection

Act 1986 before the District Consumer Disputes Redressal Forum3, 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

Commission4. The State Commission by its order dated 2 February 2016 affirmed

the order of the District Forum, holding that a “sudden death due to mosquito bite in

a foreign land” was 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 observed thus:

“The term “accident” has 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

3 “District Forum” 4 “the “West Bengal State Commission”

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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 Advanced Learner’s Dictionary (New 8th Edition). The  word  ‘accident’  is  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  (In  Black’s  Law  Dictionary  (Ninth  Edition).” (sic)

6 On whether a death as a result of encephalitis malaria was an accident, the

National Commission held:  

“It 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 accident.”                 

During the course of hearing Ms Madhavi Divan, learned Additional Solicitor General

submitted that:

(i) Among the perils which were insured against by the policy is ‘death due to

accident’; (ii) Clause 3(A) of the conditions specified that the insured was required to

give immediate notice of any change of business or occupation;

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(iii) No  intimation  was  furnished  by  the  insured  of  having  taken  a  job  in

Mozambique which was a material breach of the policy condition; (iv) Malaria is a common occurrence in tropical  countries,  particularly so in

Mozambique; (v) The death of the insured was hence not accidental, since the expression

‘accident’  postulates  an  occurrence  which  is  unnatural,  unforeseen  or

unexpected; (vi) It  is  well  established  that  the  expression  ‘accident’  does  not  include

disease and other natural causes; (vii) The insured died of multi-organ failure which may not necessarily be a

direct consequence of a mosquito bite; (viii) The analogy drawn by the National Commission with a snake bite or a

scorpion bite is inapposite; and (ix) A variety of ailments can be caused on account of mosquito bites such as

Dengue,  Chikungunya  and  Zika,  which  if  unattended  can  lead  to

complications and result in death, but it would be absurd to term the cause

of death as an accident.  

7 On the other hand, learned Counsel appearing on behalf of the respondents

supported  the  decisions  of  the  District  Forum,  the  State  Commission  and  the

National Commission. Counsel submitted that sustaining the mosquito bite is by its

very nature a matter of chance or accident since it is unforeseen. Malaria traces its

origin to a mosquito bite and hence, it was urged that a death which is caused as a

result of malaria must necessarily be construed to be accidental in nature.

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8 The rival submissions fall for consideration.  

9 Section II of the policy covered the following perils:

“Section II: 1. Death due to accident. 2. Accidental loss of two limbs, two eyes or one limb and

one eye. 3. Permanent  total  disablement  or  injuries  other  than

that named above.”     10 The exclusions from Section II were:

“1.   Loss of one limb or one eye 2. Any  accidental  injury  or  loss  not  mentioned  under

Section-II above 3. Cumulative Bonus 4. Education Fund   5. Cost of transportation of the dead body 6. Persons  below  the  age  of  18  years  at  the  time  of

disbursement of loan, and above 60 years at the end of repayment period  

7. People having Hysteria  8. Death or accidental resulting from intentional self injury,

suicide or attempted suicide 9. Death or injury from accident while under the influence of

intoxicating liquor or drug 10. Death  or  injury  from  accident  caused  by  insanity  or

venereal disease 11. Death or injury from accident arising or resulting from the

insured committing any breach of law with criminal intent 12. War or war like operations  13. Lionising radiations or contamination by radioactivity  14. Loss by delay, loss of market or any other consequential

or indirect loss or damage  15. Default in repayment of installments and or loan due to

any reason whatsoever except due to the occurrence of insured peril.”     

In support of the submission that death due to malaria is a common occurrence in

Mozambique,  Ms  Divan  has  adverted  to  the  World  Health  Organization’s  World

Malaria Report 2018. According to it, in 2017, there have been an estimated ten

million cases of malaria in Mozambique and an estimated 14.7 thousand deaths.

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According to the World Population Prospects 2017 Report published by the United

Nations Department of Economic and Social Affairs, Population Division, nearly one

out of three people in Mozambique contracted malaria.  

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.   

12 A line of precedents, both of this Court and international, have dealt with the

meaning of the expression ‘accident’. In Union of India v Sunil Kumar Ghosh5, this

Court held that:

“13…An  accident  is  an  occurrence  or  an  event  which  is unforeseen and startles one when it takes place but does not startle one when it does not take place. It is the happening of the unexpected, not the happening of the expected, which is called an accident. In other words an event or occurrence the happening  of  which  is  ordinarily  expected  in  the  normal course by almost everyone undertaking a rail journey cannot be  called  an  “accident”.  But  the  happening  of  something which  is  not  inherent  in  the  normal  course  of  events,  and which is not ordinarily expected to happen or occur, is called a mishap or an accident.”

13 In a subsequent decision in  Regional Director, ESI Corporation v Francis

De Costa6, the expression ‘accident’ was defined as follows:  

“4…The popular  and ordinary sense of  the word ‘accident’ means the mishap or an untoward happening not expected and designed to have an occurrence is an accident. It must be regarded as an accident,  from the point  of  view of  the workman  who  suffers  from  it,  that  its  occurrence  is unexpected and without design on his part,  although either

5 (1984) 4 SCC 246 6 1993 Supp (4) SCC 100

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intentionally caused by the author of the act or otherwise.”    

The same principle was adopted in  Jyothi Ademma  v Plant Engineer, Nellore7,

where this Court held:

“7…the  expression  accident  means  an  untoward  mishap which is not expected or designed.”

P Ramanatha Aiyar’s Law Lexicon8, defines the expression ‘accident’:

“an  event  that  takes  place  without  one’s  foresight  or expectation;  and  event  that  proceeds  from  an  unknown cause,  or  is  an  unusual  effect  of  a  known  cause,  and therefore not expected, chance, causality, contingency.”

The above Law Lexicon, relying on Lovelace v Traveler’s Protective Association9,

defines the expression ‘death by accident’ as:

“Death  from any  unexpected event,  which  happens,  as  by chance, or which does not take place according to the usual course of things.”  

14 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  the

7 (2006) 5 SCC 513 8 3rd Edition, 2012 9 47 Am. St. Rep. 638

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insurance 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. The issue is whether death caused by any other disease

not  specifically  excluded  under  the  policy,  is  be  covered.  The  issue  whether  a

disease  can  be covered  under  the  ambit  of  the expression  ‘accident’  has been

analysed in  A W Baker Welford’s The Law Relating to Accident Insurance10,

where it was stated:

“The  word  “accident”  involves  the  idea  of  something fortuitous  and  unexpected,   as  opposed  to   something proceeding  from  natural  causes;  and  injury  caused  by accident  is  to  be  regarded  as  the  antithesis  to  bodily infirmity  caused  by  disease  in  the  ordinary  course  of events.” (emphasis supplied)

Colinvaux’s  Law  of  Insurance11 elucidates  on  the  ambit  of  the  expression

‘accident’:

“Accident  excludes  disease. It  follows  from  the  above principle that  a disease cannot be classified as an accident. Although disease proximately caused by an accident, in the absence of  any exclusion for disease will  be covered by a personal accident policy, it is well established that the word “accident does not include disease and other natural causes, and implies that intervention of some cause which is brought into  operation  by  chance  and  which  can  be  described  as fortuitous.”     (emphasis supplied)

The expression ‘accidental death insurance’ has been explained in  P Ramanatha

Aiyar’s Advanced Law Lexicon12:

“Insurance that provides coverage in the event of death due to accidental injuries,  but not illness. In the event of death,

10 2nd Edition, 1932 11 10th Ed.by Robert Merkin  12 3rd Ed. (2005)

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payment is made to the insured’s beneficiary. If bodily injury occurs (e.g., the loss of a limb), the insured receives a sum specified by the contract. (insurance)”  

The treatises extracted above construe accidents and diseases as distinct concepts.

Baker Welford regards ‘accident’ as 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  term  ‘accident’.  There  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 of events’. In 1861, the Queen’s Bench Division13

in 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. Cockburn C.J., delivering the judgment of the court held:

“It is difficult to define the term “accident”, as used in a policy of this nature, so as to draw with perfect accuracy a boundary line between injury or death from accident, and injury or death from natural causes; such as shall be of universal application. At the same time we think we may safely assume that, in the term “accident”  as so used some violence,  casualty,  or  vis major,  is  necessarily  involved.  We  cannot  think  disease produced by the action of a known cause can be considered as  accidental.  Thus  diseases  or  death  engendered  by exposure to heat, cold, damp, the vicissitudes of climate, or atmosphere influences, cannot, we think properly be said to be  accidental;  unless  at  all  events,  the  exposure  is  itself

13 Sinclair v Maritime Passengers Assurance (1861) 3 E&E 478

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brought  about  by  circumstances  which  may  give  it  the character of accident.   Thus (by way of illustration), if,  from the effects of ordinary exposure to the elements, such as is common in the course of navigation, a mariner should catch cold and die, such death would not be accidental; although if, being obliged by shipwreck or other disasters to quit the ship and take to the sea in an open boat, he remained exposed to wet and cold for some time, and death ensued therefrom, the death might properly be held to be the result of accident. It is true that, in one sense, disease or death through the direct effect of a known natural cause, such as we have referred to, may  be  said  to  be  accidental  inasmuch  as  it  is  uncertain beforehand  whether  the  effect  will  ensue  in  any  particular case.  Exposed to  the  same malaria  or  infection,  one man escapes, another succumbs. Yet diseases thus arising have always been considered, not as accidental, but as proceeding from natural causes.”        

The Court contrasted the term ‘accident’ with an event that occurs naturally and held

that death due to a sunstroke was not an accident:

“In  the  present  instance,  the  disease  called  sunstroke, although the name would at first seem to imply something of external  violence,  is,  so  far  as  we  are  informed,  an inflammatory disease of the brain, brought on by exposure to the too intense heat of the sun’s rays. It is a disease to which persons exposing themselves to the sun in a tropical climate are more or less liable, just as persons exposed to the other natural  causes  to  which  we  have  referred  are  liable  to disastrous  consequences  therefrom.  The  deceased,  in  the discharge of his ordinary duties about his ship, became thus affected and so died. “We think, for the reasons we have given, that his death must be considered as having arisen from a “natural cause,” and not from “accident,” within the meaning of this policy.”

16 In  Fenton  v Thorley & Co. Ltd.14, the House of Lords held that a rupture

caused by an act of over-exertion would not fall within the ambit of the term ‘injury by

14 (1903) AC 443

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accident’. Lord Macnaughten speaking for the House of Lords held thus:

“Now the expression “injury by accident” seems to me to be a compound expression. The words “by accident” are, I think, introduced  parenthetically  as  it  were  to  qualify  the  word “injury,” confining it to a certain class of injuries, and excluding other classes, as, for instance, injuries by disease or injuries self-inflicted by design.”   

The  Court  of  appeal  followed  this  decision  in  Steel  v Cammel,  Laird  &  Co.15,

Cozens Hardy L.J. observed:

“The doctor called as a witness by the workman said that the paralysis  was  an  “occupation”  disease,  which  he  should expect in a certain number of cases to follow on the work on which the workman was engaged. It was not unforeseen; it was not unexpected… Injury by disease alone, not accompanied by an accident, is expressly excluded, as pointed out by Lord Macnaughten in Fenton v Thorley & Co.”        (emphasis supplied)

17 In Co-operators Life Insurance  Company v Randolph Charles Gibbens16,

the Supreme Court of Canada was tasked with determining whether contracting  a

rare  complication  of  herpes  that resulted in paralysis caused due to engagement

in unprotected sex would be covered under the definition of ‘accident’. The Court

held thus:  

“59. In the present case the evidence is that genital  herpes is  a  sexually  transmitted  virus  that  spreads  by  sexual intercourse.  Sex  is  its  normal  method of transmission. As such,  unlike for  example an internally  developing condition leading  to  an  aneurysm,   its   transmission   requires   an outsider’s   participation.  But  the  same  could  be  said  of

15 (1905) 2 K.B. 232 16 2009 SCC 59

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infectious  diseases  generally.  Viruses  and  bacteria  pass, directly   or   indirectly,   from   person   to   person,   and occasionally  across  species.  In  the  “ordinary  language of the people”, an individual would not say on coming down with influenza that “I had an accident”. We come down with the flu “in the ordinary course of events.”

   (emphasis supplied)

18 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

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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  Company17,  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.

17 No. 16-20831 (5th Cir. 2018)

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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 vector-

borne 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 Health

Organization’s World 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.  

21 We are hence of the view that the interpretation placed on the terms of the

insurance  policy  was  manifestly  incorrect  and  that  the  impugned  order  of  the

National Commission is unsustainable.  

22 We have been informed during the course of the hearing that the claim under

the insurance policy has been paid by the insurer.  We direct  in  exercise  of  our

jurisdiction under Article 142 of the Constitution that no recoveries shall be made.

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We have embarked on the present exercise since the issue raised in the present

case will have a bearing on similar questions of interpretation in policies of insurance

envisaging an accident cover.  

23 The appeal is allowed and the impugned judgment and order of the National

Commission shall stand set aside. There shall be no order as to costs.                   

…….………….…………………...........................J.                        [DR DHANANJAYA Y CHANDRACHUD]

.…….…………………………...............................J.    [HEMANT GUPTA]

NEW DELHI; March 26, 2019.

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