Allahabad High Court
Smt. Shanti Devi vs State Of U.P. And Others on 13 November, 2017
Bench: Amreshwar Pratap Sahi, Saral Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 37 Case :- WRIT - C No. - 53992 of 2008 Petitioner :- Smt. Shanti Devi Respondent :- State Of U.P. And Others Counsel for Petitioner :- M.P.S. Chauhan Counsel for Respondent :- C.S.C.,Ram Kishor Gupta,Tarun Agrawal Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Saral Srivastava,J.
(Delivered Oral By Hon'ble Saral Srivastava, J) Heard Sri M.P.S. Chauhan, learned counsel for the petitioner, learned Standing Counsel on behalf of the respondent nos. 1 to 3, Sri R.K. Gupta, learned counsel on behalf of the respondent no. 4 and Sri Mohit Shukla holding brief of Sri Tarun Agarwal, learned counsel for the respondents no. 5.
The brief facts given arise to the present petition are that petitioner's husband Gajendra Pal Singh was working as Senior Clerk in Government Girls Inter College Hathras (Mahamaya Nagar) and was sent on election duty as Presiding/Election Officer in the Panchayat Election of the year 2005 which was held on 20.08.2005. Gajendra Pal Singh was travelling with polling party by Bus No. U.P. 81 N-9767 to reach polling booth but he denied on the way to polling booth. An F.I.R. with regard to the death of the Gajendra Pal Singh was lodged at Police Station Hathras and the post-mortem was also conducted, which disclosed the cause of death was heart disease. It transpires from the record that there was Personal Accident Insurance Policy (Group) issued by The New India Assurance Company covering the risk of the employees deputed by the Government of Uttar Pradesh for election duty. In both phases of Panchayat Elections of the year 2005 for the period between 16.08.2005 to 29.08.2005 the liability of The New India Assurance Company (hereinafter referred to Insurance Company) was subject to the terms and conditions of the insurance policy. The relevant clause of the policy is extracted herein under:
"NOW THIS POLICY WITNESSTH that subject to and in consideration of the payment made to the Company the premiums for the period stated in the schedule or for any further period for which the company may accept payment for the renewal of this policy and subject to the terms provisions, exceptions and conditions herein expressed or contained or hereon endorsed, the company shall pay the INSURED to the extended & manner hereinafter provided that if any of the insured persons shall.
Sustain any bodily injury resulting solely and directly from accident caused by external, violent and visible means, the sum hereinafter set forth in respect of any of the insured persons specified in the schedule.
It appears that since the husband of the petitioner Gajendra Pal Singh died during election duty, petitioner being wife of Gajendra Pal Singh submitted a claim under the Insurance policy (hereinafter referred to Insurance Company) before the respondent no. 4 on 12.12.2005. The claim of the petitioner was rejected by respondent no. 4 vide order dated 22.12.2005 on the ground that policy covered the risk of death only if it had been caused by any bodily injury resulting solely and directly from accident caused by external, violent and visible means. It further transpires from record that the petitioner being aggrieved by the order dated 22.12.2005 approached the Lokayukt, Uttar Pradesh, Lucknow, who also rejected the claim of the petitioner as not maintainable vide order dated 16.09.2008.
Feeling aggrieved by the order dated 22.12.2005 passed by the Branch Manager of the Company and the order dated 16.09.2008 passed by Secretary, Lokayukt. Petitioner has preferred the present writ petition for quashing the aforesaid orders and also sought a writ of mandamus, directing the Insurance company to pay Insurance claim to the petitioner with interest.
The respondent no. 4 filed a counter affidavit stating therein that the husband of the petitioner did not sustain bodily injury resulting solely and directly from accident caused by external, violent and visible means. The Insurance company pleaded that the petitioner's husband died due to heart failure, while on his way to perform election duty and the death of the husband of the petitioner would fall in the category of natural death and not accidental death. In this regard he has placed reliance upon the terms and conditions of the policy extracted herein above. Thus, he submits that the petitioner has failed to make out any case for interference by this Court under Article 226 of the Constitution of India.
The Election Commissioner i.e. respondent no. 5 also filed counter affidavit, and supported the the stand of the Insurance Company, inasmuch as, the Election Commissioner stated in the counter affidavit that the death of the petitioner did not occur as a result of any accident, rather it was a natural death possibly on account of heart failure, as is evident from the post-mortem report of the deceased.
The petitioner filed rejoinder affidavit to the counter affidavit of the Insurance Company as well as the Election Commissioner stating therein that the husband of the petitioner died due to heart failure on account of over pressure of work.
The issue which falls for consideration before this Court in the present writ petition is as to whether the cause of death being heart disease as indicated in the post-mortem report of the deceased would fall within the category of accidental death in terms of the insurance policy which provides that the liability of the company would arise, if the insured person has sustained bodily injury resulting solely and directly from accident caused by external, violent and visible means.
The counsel for the petitioner submits that admittedly the husband of the petitioner died during election duty. He submits that though the cause of death as indicated in the post-mortem report was due to heart disease but he suffered heart problem causing his death due to over pressure of work and therefore, the death of the husband of the petitioner was an accidental death. He submits that the terms and conditions of the policy should be interpreted in a manner which is beneficial to the interest of deceased, as the whole object of taking any Insurance Policy is to be given relief to the family of the persons in the event of any untoward incident. He submits that the word "external, violent and visible means should be given a liberal interpretation so as to achieve the object of the policy. In this regard he has placed reliance upon judgment of the Jharkhand High Court reported in National Insurance Company Limited Vs. Sugia Devi and others 2012 (1) T.A.C. 919 (Jharkhand), wherein the High Court has granted relief to the dependants of an employee who died due to drowning while taking a bath while proceeding for election duty.
The counsel for the respondents, on the other hand, contends that the deceased died a natural death, as is evident from the post-mortem report. The counsel for the respondents submits that the policy covered the risk only if the cause of death was on account of any bodily injury resulting solely and directly from accident caused by external, violent and visible means and there is nothing on record, where from it can be inferred that the death of deceased occurred due to bodily injury resulting solely and directly from an accident caused by external, violent and visible means. The counsel for the respondents points out that there was no pleading in the writ petition to the effect that the cause of death of the deceased was due to any bodily injury resulting solely and directly from an accident caused by external, violent and visible means. Thus, submission of counsel for respondent is that the petitioner has failed to make out a case calling for an interference by this Court under Article 226 of the Constitution of India.
We have heard the rival submissions of the parties and perused the record.
In order to analyse and appreciate the issue, it can be appropriate to reflect on the the meaning of the words accident, accidental injury, external, and visible means as used in the policy.
In 'Black's Law Dictionary', meaning of the words accident and accidental injury are as under: illustration as under:
"accident, n. (14c) 1. An unintended and unforeseen injurious occurrence; something that does not occur in the usual course of events or that could not be reasonably anticipated. 2. Equity practice. An unforeseen and injurious occurrence not attributable to the victim's mistake, negligence, neglect, or misconduct; an unanticipated and untoward event that causes harm.
"The word 'accident,' in accident policies, means an event which takes place without one's foresight or expectation. A result, though unexpected, is not an accident; the means or cause must be accidental. Death resulting from voluntary physical exertions or from intentional acts of the insured is not accidental, nor is disease or death caused by the vicissitudes of climate or atmosphere the result of an accident; but where, in the act which precedes an injury, something unforeseen or unusual occurs which produces the injury, the injury results through accident." 1A John Alan Appleman & Jean Appleman, Insurance Law and practice s 360, at 455 (rev. vol. 1981).
"Policies of liability insurance as well as property and personal injury insurance frequently limit coverage to losses that are caused by 'accident.' In attempting to accommodate the layman's understanding of the term, courts have broadly defined the word to mean an occurrence which is unforeseen, unexpected, extraordinary, either by virtue of the fact that it occurred at all, or because of the extent of the damage. An accident can be either a sudden happening or a slowly evolving process like the percolation of harmful substances through the ground. Qualification of a particular incident as an accident seems to depend on two criteria: 1. the degree of foreseeability, and 2. the state of mind of the actor in intending or not intending the result." John F. Dobbyn. Insurance Law in a Nutshell 128 (3d ed. 1996).
Accidental injury. (1800) An injury resulting from external, violent, and unanticipated causes; exp., 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.
In the 'P. Ramanatha Aiyar's The Law Lexicon Third Edition 2012, the meaning of "accident" and "external" are as under:
"The word "accident" generally denotes an event that takes place without one's foresight or expectation; an event which proceeds from an unknown cause, or is an unusual effect of a known cause, and therefore not expected; chance, causality, contingency (Webster Dict.); an event happening without the concurrence of the will of the person by whose agency it was caused. It differs from mistake in that the latter always supposes the operation of the will of the agent in producing the event although that will is caused by an erroneous impression on the mind.
External. Something that is outside, such as external trade. (Insurance) This term is used in contradiction to "internal." It can only apply to something which has an outside and an inside, and as applied to a house, everything external to the house, or, as it is popularly called "out of doors." (Perry v. Davis, 3 CBNS 769, 777)"
In 'Strouds Judicial Dictionary' Fifth Edition 1, meaning of "accident" and "external" has been given as under:
ACCIDENT. (1) "An effect is said to be accidental when the act by which it is caused is not done with the intention of causing it, and when its occurrence as a consequence of such act is not so probable that a person of ordinary prudence ought, under the circumstances in which it is done, to take reasonable precautions against it" (Steph. Cr. (9th ed.), 260).
External. (1) In an insurance against "bodily injury caused by violent, accidental, external and visible means" but excepting "natural disease, or weakness or exhaustion consequent upon disease" - "external" is used in contradistinction to such internal causes as disease or weakness;"
It is also necessary to refer to English Law relating to personal accident policy as the forms and terminology used in the policies in India are almost identical to the terminology used by the Insurance Companies in England and other countries.
Chapter 17 titled as "Accident Insurance" in the Law of Insurance by Raoul Colinvaux, Fourth Edition defines meaning of "Accident", "Violent" and "External and Visible" in personal accident policy which are extracted herein under:-
"17-11 Accident excludes disease But caution must be exercised in applying such principles to insurance cases. Industrial diseases were, after those decisions, expressly included within the provisions of the Workmen's Compensation Acts.28 But in insurances cases, although disease proximately caused by an accident will be covered by a personal accident policy, 29 it is well established that the word "accident" does not include disease and other natural causes, and implies the intervention of some cause which is brought into operation by chance, and which can be described as fortuitous. Thus the word "accident" in an accident policy excludes sunstroke, which the court has classed with illness from malaria, exposure to the weather, etc.30 17-15 "Violent"
In most of the above cases the policies insured against bodily injury caused "by violent, accidental, external and visible means only," but the decisions turned mainly on the question whether or not the particular injury was caused by accidental means. That was because such words as "violent," "external" and "visible" have been given wide meanings, practically co-extensive with "accidental."
17-16 "External" and "visible"
Similarly "external" is used to express anything which is not "internal, ''47 and any cause which is "external" in this sense is also "visible" within the meaning of an accident policy. 48 These words refer to the accident, not the injury, and are used to distinguish injuries covered by the policy from those due simply to such causes as disease or senility which arise in the body of the assured.
Thus the words "by violent, external and visible means" add little, if anything, to an accident policy and have been adversely criticised by the Court of Appeal.49"
Chapter 23 in The Law of Insurance by MacGILLIVARY & PARKINGTON ON INSURANCE LAW, SEVENTH EDITION deals with "Personal Accident Policy" wherein it defines phrases "Events Happening Naturally, "Pre-existing latent weakness or disease" which are extracted herein under:-
"1771. Events happening naturally. Events that happen in the course of nature and all ordinary and foreseeable consequences of such events are not accidents. Such events fall into two main categories, pre-existing latent weakness or disease and exposure to the elements.
1773 Pre-existing latent weakness or disease. Many insurance policies have an express exception for disease existing at the time of the accident but it is well settled that accident policies do not cover death or injury as a result of a pre-existing weakness or disease,38 whether its existence or extent was known to the insured or not. 39 Thus in Re Scarr and General Accident Assurance Corporation, 40 the insured had been suffering from a condition known as fatty degeneration of the heart; he attempted to eject a drunken man from his office and the effort and excitement operating upon the defective condition of the heart caused dilation and subsequently death. It was held that there had been no accident. Similarly where the insured took a long bicycle ride and the natural action of psoas muscle rubbing against abnormal concretions in the appendix set up inflammation and caused death, the death was due to natural and not accidental means.41 In all such cases the only accidental element is that the assured is not aware of his own condition or of the natural consequence which is likely to ensure from the voluntary effort which he makes."
The meaning of the word "accident" as has been given various dictionaries and texts referred to herein above is an occurrence that does not happen in the usual course of events or that could not be reasonably anticipated.
The word "accident" ordinarily means something which occurs unexpectedly or by chance. A natural death, say on account of a death due to heart attack while strolling is also an unexpected death. There are, however, predictables, for example in cases where a person may be ailing for long and facing a terminal disease like cancer. Such unexpected or even expected death's are not within the definition of the word accident as used in the policy under consideration. Thus, the word accident being qualified by the causes of accident would govern the parameters for award of compensation.
It can also be safely culled out from the meaning of the word accident as discussed above in the context of Insurance Policy that it does not include death simply caused by disease or prior ailment and other natural causes.
The object of the policy and the terms and conditions of the policy also requires a reference to explain the precautions taken under the policy itself. The object of the policy is to secure the safety of any serving personnel during election duty. It is not un-common that actual polling at the time of elections are witnessed with disturbances, where those on election duty are exposed to dangerous situations of violence arising out of dis-order and nuisance created by miscreants. There are movement of vehicles for transporting polling material ending up in the deposit of ballot boxes at the counting headquarters. All these activities at times are beset with accidents that are unforeseen, but at times apprehended as well. It is in order to cover the risk of life and safety of individuals involved in such official election duty that the policy intends to give coverage. There can be many more illustrations but we have mentioned only a few to indicate the objectives of the policy. It is for this reason, that the policy has been described as a personal accident policy. The coverage, therefore, does not intend to include anything that happens naturally as in the present case. The condition attached to and forming part of the policy requires a post mortem to be conducted in order to assess the nature of death. The conditions also provide that in the event of a dispute of amount of compensation the matter can be referred to an arbitrator for resolving the same.
There are, however a peculiar clauses under the heading "Exceptions" where the company has absolved itself of any liability of compensation. The company, has therefore, carved out these exceptions where it is not under any obligation to make payments. These are Clauses 1 to 8 of the exceptions which are extracted herein under:-
" 1. Compensation under more than one of the foregoing sub-clauses in respect of the same period of disablement of the insured person.
2. Any other payment to the same person after a claim under one of the sub-clauses (a) (b) or (d) has been admitted and become.
3. Any payment in case of more than one claim in respect of much insured person under the policy during any one period of insurance by which the maximum liability of the company specified in the schedule applicable to such insured person would exceed the sum payable under sub-clause (a) of this policy to such insured person.
4. Payment of compensation in respect of Death, injury or disablement of the insured person (a) from intentional self injury, suicide or attempted suicide, (b) whilst under the influence of intoxicating whilst mounting into, dismounting from or travelling in any balloon of liquor or drugs (c) whist engaging in Aviation or Ballooning or aircraft other than as a passenger (fare paying otherwise) in any duly licensed standard type or aircraft anywhere in the world, (d) directly or indirectly caused by venereal disease, AIDS or insanity (e) arising or resulting from the insured person committing any breach or law with criminal intent.
("Standard type of Aircraft" means any aircraft duly licensed to carry passengers): for hire or otherwise: by appropriate authority irrespective of whether such an aircraft is privately owned or chartered or operated by a regular airline or whether such an aircraft has a single engine or multi engine.
5. Payment of compensation in respect of Death, Injury or Disablement of the insured person due to or arising out of directly or indirectly connected with or traceable to : war, Invasion, Act of foreign enemy, Hostilities (Whether war be declared or not): civil war, Rebellion, Revolution, Insurrection, Mutiny or Usurped power Seizure, Capture, Arrests Restraints and Detainments of all kinds, princes and people of whatsoever nation condition or quality.
6. Payment of Compensation in respect of death or bodily injury or any disease or illness to the Insured person:-
a) directly or indirectly caused by or contributed to by or arising from ionising radiation or contamination by radioactivity from any nuclear fuel or form any nuclear waste from the combustion of nuclear fuel. For the purpose of this exception, combustion shall included any self-sustaining process of nuclear fission.
b) directly or indirectly caused by or contributed to by or arising from nuclear weapons material.
7. Provided also that due observance and fulfilment of the terms and conditions of this policy (which conditions and all endorsements hereon are to be read as part of this policy) shall so far as they relate to anything to be done or not to be done by the Insured and/or Insurance person be a condition precedent to any liability of the company under this Policy.
8. Pregnancy Exclusion Clause: The Insurance under the Policy shall not extend to cover death or disablement resulting directly or indirectly caused by contributed to or aggravated or prolonged by child birth or from pregnancy or in consequence thereof."
An argument can be raised that these exceptions having been carved out, then in that event it is only these exceptions where the company is not liable to pay compensation. We cannot accept any such assumption even if there is no exclusionary clause for a natural death, as in the present case, inasmuch as, as already held above there is a positive mandate in the policy that it shall be payable only in the case of sustaining of any injury resulting solely and directly from an accident as explained above. The object of the policy, therefore, is not to make payments on account of any death having been caused in the natural course of events but on account of an accident during election duty.
The words "external and visible" in the context of Insurance Policy means something that is not internal and visible.
Now, coming to the instant case, there is nothing on record to suggest that the cause of death of Gajendra Pal Singh was on account of some external force. The death of Gajendra Pal Singh was due to heart disease as is evident from the post-mortem report whereas the policy covers the risk only if the death was caused due to bodily injury resulting solely and directly from an accident caused by external, violent and visible means. Thus, death of Gajendra Pal Singh due to heart disease in the present case would not fall in the category of an accidental death in terms of the policy under consideration.
The Jharkhand High Court in the case of National Insurance Company Limited (Supra), was considering a case where the Government employee had died during election duty due to drowning, and the claim was rejected by the insurance company on the ground that there was an arrangement for bathing inside the campus, and the deceased should not have gone to the pond, and therefore the disease did not die while performing election duty. The Court held that death due to accident is covered as there was no exclusion to the accidents arising out of election related work, and consequently the Jharkhand High Court rejected the contention of the Insurance Company and held the company liable.
In the present case, as per the own case of the petitioner, the deceased died due to heart disease and the death of the deceased can in no manner be said to have occurred due to any accidental injury caused by external and visible means during election duty. As a matter of fact there was no accident at all as against the case decided by the Jharkhand High Court, where the drowning of the deceased while taking a bath for getting ready during his deputation election duty was purely accidental. Thus the present case is clearly distinguishable on facts. The judgment of the Jharkhand High Court in the case of National Insurance Company Limited (Supra), therefore does not come to the aid of the petitioner.
Counsel for the petitioner could not place any provision of Law under which the petitioner could submit her claim before the Lokayukt against the order dated 22.12.2005 passed by the Branch Manager of Company rejecting the claim of the petitioner. Thus, we do not find any illegality in the order dated 16.09.2008 passed by the Lokayukt Uttar Pradesh, Lucknow dismissing the claim petition of petitioner as not maintainable.
Consequently, we do not find any illegality in the order dated 22.12.2005 passed by the Senior Branch Manager of the Company and the order dated 16.09.2008 passed by the Lokayukt Uttar Pradesh, Lucknow dismissing the claim petition of petitioner as not maintainable.
For the reasons indicated above, the writ petition lacks merit and is, accordingly, dismissed.
There shall be no orders as to costs.
Order Date :- 13.11.2017 Ishan