Madras High Court
New India Assurance Company vs K.Thilagam on 10 June, 2009
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.6.2009 CORAM: THE HONOURABLE MR.JUSTICE M.VENUGOPAL A.S.No.79 OF 2002 AND C.M.P.No.9963 of 2002 New India Assurance Company Limitedm Gobichettipalayam, by its Branch Manager, 12,New Hospital Street, Gobichettipalayam .. Appellant/Defendant -vs- K.Thilagam .. Respondent/Plaintiff This appeal is filed under Section 96 of CPC against the Judgment and Decree dated 29.11.2001 passed in O.S.No.239 of 2000 on the fle of Principal Sub Court, Gobichettipalayam. For appellant : : Mr.S.Manohar For respondent : : M/s R.T.Doraisamy J U D G M E N T
The appellant/New India Assurance Company Limited/defendant has preferred this appeal as against the Judgment and decree dated 29.11.2001 made in O.S.No.239 of 2000 by the learned Principal Subordinate Judge, Gobichettipalaym, directing the appellant to pay the capital insured sum of Rs.5,00,000/- to the respondent/plaintiff and also directing the payment of court fee in a month, to be paid by the appellant.
2.The short summation of facts of the case are as follows:
The plaintiff's husband Karunanidhi insured with the defendant Company as per "Janatha Personal Accident Insurance Policy" for Rs.5,00,000/- and remitted a sum of Rs.250/-towards premium on 25.6.1997. The appellant/Insurance Company/defendant issued the policy bearing No.4772080203638 and the date of issue of the policy was 25.6.1997 and the same was to be in force till 24.6.1998. The deceased Karunanidhi nominated his wfie as nomiee to receive the capital sum insured in case of death. The respondent/plaintiff as nominee to receive the capital sum insured in case of death. The respondent/plaintiff's husband Karunanidhi, due to heart attack expired on 01.06.1998 at D.S.K.Hospital,Tiruppur. The appellant/ defendant was to pay the sum assured in the policy to the respondent/plaintiff because of fact that heart attack was also an accident. The respondent/plaintiff requested the appellant/defendant to pay the sum assured in the policy. But the appellant/defendant had not complied with. On 19.5.2000, the respondent/plaintiff issued a lawyer's notice on 22.5.2000 but not paid the amount. Hence the suit was filed in directing the appellant/defendant company to pay a total sum of Rs.6,22,830/- (including policy sum and interest) along with future interest and costs.
3.The appellant/Insurance Company/defendant filed a written statement inter alia stating that the policy conditions were misconstrued by the respondent/plaintiff and that the she cannot claim compensation under "Janatha Personal Accident Insurance Policy" for the death of her husband due to heart attack inasmuch as the said policy enjoins that the insurer could not claim any compensation under the Policy, if the death was caused due to other illness of the deceased and that the suit was not maintainable and further the cause of action was not correct and the suit was to be dismissed with costs.
4.On the basis of the aforesaid pleadings, the trial Court framed three issues. On the side of the respondent/plaintiff's witness, P.W.1(Plaintiff) was examined and Exs P1 to P6 were marked and on the side of the appellant/defendant, D.W.1(Officer) was examined and no documents were marked.
5.On an appreciation of the oral and documentary evidence and taking note of the available material evidence on record, the trial Court came to the conclusion that the appellant/defendant should pay a sum of Rs.5,00,000/- as per policy and that the said sum was to be paid within a month and in regard to the claim of interest, the same was dismissed.
6.Dissatisfied with the Judgment and decree made in O.S.No.239 of 2000 by the trial Court viz., the Principal Sub Court, Gobichettipalayam, the appellant/Insurance Company/defendant has preferred this appeal.
7.The point that arises for determination is Whether the appellant/defendant company is liable to pay the policy sum of Rs.5,00,000/- with interest at 12% from 01.06.1998 to 18.06.2000 along with further interest at 12% etc. as claimed in the plaint ?.
8.The learned counsel appearing for the appellant/Insurance Company/defendant urges before this Court that the trial Court has not appreciated the Janatha Personal Accident Policy in a proper perspective and that the policy indicated that unless there was death due to an accident, the appellant was not liable to pay the amount and further the respondent/plaintiff's husband Karunanidhi was ailing from heart attack for few years prior to the accident and therefore, there was nothing accidental about the disease which caused the death of the respondent's/plaintiff's husband and as per the policy, no liability could be fastened on the appellant/Insurance Company and moreover the said policy was intended to cover such accidents caused by outward, violent and visible means and in the absence of any of such"outward or violent or visible means" , the trial Court ought to have rejected the claim of the respondent/plaintiff and in any event, the trial Court had committed an error in equating the term"accident" occurring with the term"accident" mentioned in the terms of the policy and in the instant case,as per the terms of Contract of Insurance, the Insurance Company had agreed to identify the death only if such death was due to an accident caused by any outward, violent and visible means and even to prove that the death due to heart attack , no evidence was adduced and therefore prays for allowing the appeal in the interest of justice.
9.The learned counsel appearing for the appellant/Insurance Company submits that an insured cannot claim anything more than what is covered by the insurance policy and to lend support to his contention, he relies on the decision reported in Vikram Greentech(I) Ltd-v- New India Assurance Co., Ltd(2009(3) Supreme 226) wherein it is observed that 'Court while construing the terms of policy is not expected to venture into extra liberalism that may resuslt in rewriting the contract or substituting the terms which were not intended by the parties and that the insured cannot claim anything more than what is covered by the insurance policy'. Added further in the aforesaid decision, it is also laid down that 'except for the requirement of uberimma fides ie., good faith on the part of the insured, there is no difference between a contract of insurance and any other contract'.
10.He also brings it to the notice of this Court to the decision of Honourable Supreme Court in Jyothi Ademma-v- Plant Engineer, Nellore Thermal Station (2006 ACJ 2165) whereby and whereunder, it is inter alia held that "but in the present case, it has been brought on record that the deceased was suffering from chest disease and was previously being treated for such disease. The High Court also noted that the job of the deceased was only to switch on or off and, therefore, the doctor had clearly opined that there was no scope for any stress or strain in his duties. In view of the factual findings recorded, the High Court's Judgment does not suffer from any infirmity".
11.Another decision reported in LIC of India-v- Surekha Rudranath Autade(2008(2) CPR 411(NC) is relied on by the learned counsel for the appellant to the effect that "since there being no evidence that the deceased died because of any bodily injury from accident caused by outward, violent and visible means, heirs of deceased held not entitled to get any accident benefit".
12.He presses into service the decision of Hon'ble Supreme Court Shakuntala Chandrakant Shreshti-v- Prabhakar Maruti Garvali (2007 ACJ 1) to the effect that "Cleaner while alighting from vehicle suddenly developed chest pain, was taken to hospital where he was declared dead. Autopsy was conducted and the doctor opined that cause of death was cardiac arrest due to rupture aortic aneurysm. No allegation in claim petition nor any evidence produced that deceased met with his death by reason of any stress or strain, the Commissioner allowed compensation and the High Court found that findings of the Commissioner were perverse and inconsistent with the material on record and bereft of any reason and that the job of cleaner was not strenuous and he was merely getting down from the vehicle and that no evidence of any causal connection between the accident and injury so as to fulfil the requirements of the term'out of employment".
13.In response the learned counsel for the respondent/plaintiff submits that the respondent's/ plaintiff's husband Karunanidhi was a mechanic and that he died of heart attack and that heart attack was an accident and as per Ex P1 Insurance Policy, the respondent/ plaintiff was entitled to claim the amount as prayed for in the plaint and that the appellant/Insurance Company/defendant was to honour the conditions as per the terms of contract of Insurance entered into between the parties, made on a good faith and in any event, the conditions of the policy will have to be given a liberal interpretation and one should not give a pedantic interpretation to the covenants found in Ex P1 Janatha Personal Accident Insurance Policy.
14.The learned counsel for the respondent/plaintiff cites the decision of this Court in Management of Pachamalai Estate, Valparai-v- Mani(2007-1 L.W.249 at page 253) wherein it was inter alia held that "the Commissioner for Work's Compensation and the learned Single Judge have come to a conclusion that because of strenuous nature of the work, the workman suffered heart attack. This essentially is a finding of fact based on some material on record and it cannot be said that such finding is based on surmises and conjunctures or there is absolutely no evidence in support of such conclusion. An appeal under Section 30 of the Workmen Compensation Act can be considered only, if there is no substantial question of law. Since in the present case, the conclusion is based on some materials on record,the Commissioner for Workmen Compensation and the learned Single Judge have concurrently come to the factual conclusion that the death was on account of accident arising out of and in the course of employment, we are not inclined to take any different view of the matter".
15.At this juncture, the learned counsel for the respondent/plaintiff also draws the attention of this Court to the decision reported in Madras State Electricity Board-v- Ambazhtingal Ithachutti Umma (1966 II LLJ 12) wherein it is observed that "the principle in heart cases seems to be that, if death or disability is due to heart attack which resulted from the exertion of the employee in the performance of the duties of his employment, compensation should be awarded" and also he relies on the observation made in a Division Bench of Gujarat High Court in the decision of Bhagwanji Muruubhai Sodha and others-v-Hindustan Tiles and Cement Industries, Jamoagar(1977 II LLJ 95) whereunder it is held as follows:
"The sudden collapse of the worker after he suffered this injury resulting in his chest pain was clearly the result of his work connected with the work he was doing. In fact, this was a clear case where the old age got coupled with the employment and, therefore, the employment was a contributory cause and the casual connection being established, the conclusion was inescapable that the accident arose out of and during the course of the employment. Unless there were circumstances to the contrary, it would be justifiable to presume that the workman was discharging and had discharged the work that was usually assigned to him at the particular time, and it would also be natural to presume that if such work involved some strain, the disease, infirmity or old age, that was existing was likely to contribute to or accelerate the death. In such cases, the pre-existing disease, infirmity or old age is the pre-disposing factor which will supply the necessary causal link to make this a work connected injury, if death takes place while the workman is engaged in his normal work.'
16.In support of the contention that pre-existing heart condition, which was aggravated by the strain and stress of the deceased, which resulted in his death and held that the Commissioner for Workmen's Compensation was right in holding that the workman had died of an injury, the learned counsel for the respondent/plaintiff cites the decision in Management of Vanniar Estate-v- Kamatchi and Commissioner for Workmen's Compensation (II 1991) ACC 633). He further relies on the decision reported in Thiru Anjaya and another -v- L.Lakshmi (2007(4)L.W.701 at 702)wherein it is held "that the deceased was driving the auto during morning hours and also during the night hours and the strain would have caused acute chest pain which has resulted in his death and that the authority(W.C.Commissioner) has taken the fact into consideration while awarding compensation etc.,".
17.Ex P2 death certificate issued on 11.06.1998 pertains to the deceased Karunanidhi and it is evident that he expired on 1.6.1998. ExP3 is the discharge summary dated 20.07.1993 in respect of the deceased and a perusal of the same shows that the deceased Karunanidhi was admitted in the G.Kuppuswamy Naidu Memorial Hospital at Coimbatore on 09.07.1993 and that he was discharged on 18.07.1992 and further that he was admitted with the complaint of chest pain since 12.30p.m., on 9.7.1993 and that the pain is retrosternal in nature associated with breathlessness. H/O sweating+.etc., The final Diagnosis made in Ex P3 Discharge summary dated 20.07.1993 shows that the deceased was suffering from acute inferior wall myocardial infarction Thrombolysed. In ExP4 certificate dated 13.7.1999 issued by D.S.K.Hospital Dr.Visakan,K shows that the deceased was suffering from Ischemic Heart Disease from 1993 till day of death.
18.The fact that the deceased Karunanidhi died of heart attack is not disputed. But the controversy mainly revolves upon the covenants found in ExP1 Janatha Personal Accident Insurance Policy, in regard to the appellant/defendant's liability to pay the amount claimed by the respondent/plaintiff. For better appreciation of Ex P1 policy conditions, it is just and necessary for this Court to extract the same which are as follows:
" Whereas the Insured named in the Schedule below has made or caused to be made to THE NEW INDIA ASSURANCE CO.LTD., (hereinafter called "the Company") written proposal as per the Schedule hereto(warranting the truth of the statements contained therein) which is the basis of this Contract and is deemed to be incorporated herein and has paid to the Company the premium herein stated for insurance of the risks hereinafter specified occuring during the period stated in the Schedule.
Now this Policy witnesseth that subject to the terms, exclusions, definitions and conditions contained herein or endorsed or otherwise expressed here or the Company will indemnify the insured as hereinafter mentioned. If the insured shall sustain any bodily injury resulting solely and directly from Accident caused by outward, violent and visible means then the Company shall pay to the insured the sum hereinafter set forth that is to say:-
a)If such injury shall within twelve calendar months of its occurrence be the sole and direct cause of the death of the insured the capital sum insured stated in the Schedule, the amount payable under this Clause shall be paid to the Nominee shown in the Schedule
b) If such injury shall within twelve caledar months of its occurrence be the sole and direct cause of the total and irrecoverable loss of sight of both eyes or total and irrecoverable loss of use of two hands or two feet or of one hand and one foot or for such loss of sight of one eye and such loss of use of one hand or one foot, the capital sum insured stated in the schedule hereto,
c) If such injury shall within twelve calendar months of its occurrence be the sole and direct cause of the total and irrecoverable loss of sight of one eye or total irrecoverable loss of use of a hand or a foot, fifty per cent of the Capital sum insured in the Schedule hereto
d) If such injury shall within twelve calendar months of its occurrence be the sole and direct cause of permanently totally and absolutely disabling the insured from engaging in, being occupied with or giving attention to any employment or occupation of and description whatsoever, the capital sum insured stated in the Schedule."
In Ex P1 policy, it is candidly stated that ' If the insured shall sustain any bodily injury resulting solely and directly from Accident caused by outward, violent and visible means then the Company shall pay to the insured the sum (Capital sum insured Rs.5,00,000/-). In Ex P1 Policy admittedly, the wife of the deceased was mentioned as 'nominee'.
19.It is to be borne in mind that an insurance sum is payable on the death of the policy holder under an Accident Insurance Policy. In regard to the Accident Insurance Policy, the Property viz., the Insurance money comes into being on the death of the assured during the subsistence of the policy in an accident. An Accident Insurance Policy cannot be construed as a movable property unlike a life insurance policy or annuity. No wonder Accident Insurance is a contract to pay a fixed sum in case of death resulting from accident, either generally or limited to accidents of a particular kind. Accident, like Life Insurance is not always a contract of indemnity. The term' Accidental Injury means' An injury resulting from external, violent and unanticipated causes, especially, a bodily injury caused by some external force or agency operating contrary to a person's intentions, unexpectedly, and not according to the usual order of events(Black, 7th Edn.1999). As a matter of fact"caused by accidental means" in an insurance policy requires an inquiry into the cause of injury and whether it occurred by accidental means(Dhak v.Insurance Co.of North America (U.K)Ltd.,(1996)1 WLR 936)(Stroud 6th Edn.,2000).
20.In the considered opinion of this Court as regards the Accidental Death Insurance, the said Insurance Provides coverage in the event of death due to accidental injuries, but not illness. In the event of death, payment is made to the insured's beneficiary. If bodily injury occurs(eg., the loss of a limb), the insured receives a sum specified by the contract (Insurance).
21.Be that as it may, in the instant case, even though, the respondent's/plaintiff's husband Karunanidhi expired on 1.6.1998 due to heart attack and that he was doing the work of mechanic, a perusal of Ex P1 policy and especially the Clause of 'If the insured shall sustain any bodily injury resulting solely and directly from Accident caused by outward, violent and visible means then the Company shall pay to the insured the sum hereinafter set forth indicates that the death of the deceased must be caused of any bodily injury from the accident caused by external/outward, violent and visible means etc., and even though the deceased Karunanidhi died of heart attack, the same cannot come within the scope and ambit of any of the Ex P1 policy covenants and in that view of the matter, this Court comes to the inevitable conclusion that the appeal has to be allowed infurtherance of substantial cause of justice and accordingly allows the appeal to promote substantial cause of justice thereby setting aside the Judgment passed by the trial Court, which is not in accordance with law.
22.In fine, for the foregoing reasons, the appeal is allowed. Resultantly, the Judgment and decree of learned Principal Subordinate Judge,Gobichettipalayam in O.S.No.239 of 2000 are set aside to prevent an aberration of justice.
23.As a corrollary the suit in O.S.No.239 of 2000 on the file of trial Court is dismissed. Considering the facts and circumstances of the case, there shall be no order as to costs. Connected C.M.P.No.9963 of 2002 is closed.
sg/tk To The Principal Sub Court, Gobichettipalayam