THE BRANCH MANAGER NATIONAL INSURANCE CO. LTD. versus SMT. MOUSUMI BHATTACHARJEE & ORS. on 26 March 2019

46

SUPREME COURT REPORTS

[2019] 5 S.C.R.

ATHE BRANCH MANAGER NATIONAL INSURANCE CO. LTD.

v.

SMT. MOUSUMI BHATTACHARJEE & ORS.

(Civil Appeal No 2614 of 2019)

BMARCH 26, 2019

[DR. DHANANJAYA Y CHANDRACHUD ANDHEMANT GUPTA, JJ.]

Consumer Protection Act, 1986 – Insurance policy claim –Deficiency of service – Whether death due to malaria occasionedCby a mosquito bite in Mozambique constituted a death due toaccident – Insurance policy – Cover against accident – The insuredwas working in Assam and thereafter took employment inMozambique where he was diagnosed with encephalitis malaria anddied due to multi-organ failure – Claim filed by spouse and fatherDof the deceased – Plea of insurer was that death due to malariacaused by a mosquito bite was a result of an infection or diseaseand was not an accidental death under the terms of insurance policy– All the Forums allowed the claim holding that the death was causeddue to accident – On appeal, held: To be bitten by a mosquito andbe imbued with a malarial parasite does involve an element of chanceE– But the disease which is caused as a result of the insect bite in thenatural course of events cannot be regarded as an accident –Malaria is most commonly transmitted to humans through malariavirus infested mosquito bites, and when a virus is contracted throughnormal means brought about by everyday life, it cannot be deemedFto be an unexpected or unforeseen accident – In a policy ofinsurance which covers death due to accident, the peril insuredagainst is an accident: an untoward happening or occurrence whichis unforeseen and unexpected in the normal course of human events– The death of the insured in the instant case was caused byencephalitis malaria – The insured was based in Mozambique –GAccording to the World Health Organization’s World Malaria Report2018, Mozambique, with a population of 29.6 million people,accounted for 5% of cases of malaria globally – One out of threepeople in Mozambique is afflicted with malaria – In light of thesestatistics, the illness of encephalitis malaria through a mosquito bite H

cannot be considered as an accident – It was neither unexpectednor unforeseen – It was not a peril insured against in the policy ofaccident insurance – The interpretation placed on the terms of theinsurance policy by the Forums below was manifestly incorrect.

Allowing the appeal, the Court

HELD: 1. In order to constitute an accident, the event mustbe in the nature of an occurrence which is unnatural, unforeseenor unexpected. The instant case concerned death caused due toa disease being contracted. Section II of the insurance policycovers death caused by accident. Death or injury from accidentcaused by insanity or venereal disease has been specificallyexcluded and not covered under the policy. [Para 14] [55-B]

Union of India v. Sunil Kumar Ghosh (1984) 4 SCC246: [1985] 1 SCR 555;Regional Director, ESICorporation v. Francis De Costa (1993) 4 Suppl. SCC100 : [1992] 3 SCR 23; Jyothi Ademma v. PlantEngineer, Nellore (2006) 5 SCC 513 : [2006] 3 Suppl.SCR 400;Co-operators Life Insurance Company v.Randolph Charles Gibbens2009 SCC 59 – referred to Lovelace v. Traveler’s Protective Association 47 Am.St. Rep. 638;Sinclair v. Maritime Passengers Assurance(1861) 3 E&E 478;Fenton v. Thorley & Co. Ltd. (1903)AC 443; Steel v. Cammel, Laird & Co.(1905) 2 K.B.232;Gloria Wells v. Minnesota Life Insurance CompanyNo. 16-20831 (5th Cir. 2018) – referred to P Ramanatha Aiyar’s Law Lexicon 3[rd] Edition, 2012; AW Baker Welford’s The Law Relating to AccidentInsurance2[nd] Edition, 1932; Colinvaux’s Law ofInsurance 10[th] Ed. by Robert Merkin; P RamanathaAiyar’s Advanced Law Lexicon 3[rd] Ed. (2005)

– referred to

2. As the law of insurance has developed, there has beena nuanced understanding of the distinction between an accidentand a disease which is contracted in the natural course of humanevents in determining whether a policy of accident insurance A

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48SUPREME COURT REPORTS

[2019] 5 S.C.R.

Awould cover a disease. At one end of the spectrum is the theorythat an accident postulates a mishap or an untoward happening,something which is unexpected and unforeseen. Thisunderstanding of what is an accident indicates that somethingwhich arises in the natural course of things is not an accident.This is the basis for holding that a disease may not fall forBclassification as an accident, when it is caused by a bodily infirmityor a condition. A person who suffers from flu or a viral fever cannotsay that it is an accident. Of course, there is an element of chanceor probability in contracting any illness. Even when viral diseasehas proliferated in an area, every individual may not suffer fromCit. 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 havingsuffered an accident: the flu was transmitted in the natural courseof things. [Para 18] [58-G-H; 59-A-C]

3. The death of the insured in the instant case was causedDby encephalitis malaria. The claim under the policy is founded onthe hypothesis that there is an element of uncertainty aboutwhether or when a person would be the victim of a mosquito bitewhich is a carrier of a vector-borne disease. The submission isthat being bitten by a mosquito is an unforeseen eventuality and should be regarded as an accident cannot be accepted. The insuredEwas based in Mozambique. According to the World HealthOrganization’s World Malaria Report 2018, Mozambique, with apopulation of 29.6 million people, accounts for 5% of cases ofmalaria globally. It is also on record that one out of three peoplein Mozambique is afflicted with malaria. In light of these statistics,Fthe illness of encephalitis malaria through a mosquito bite cannotbe considered as an accident. [Para 20] [60-B-D]

Case Law Reference

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BRANCH MANAGER NATIONAL INSURANCE CO. LTD. v. MOUSUMIBHATTACHARJEE.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2614of 2019.

From the Judgment and Order dated 12.05.2016 of the NationalConsumers Disputes Redressal Commission, New Delhi.

Madhvi Divan, ASG, Mansimran Singh, Ms. Vishakha Ahuja, VishnuMehra, Ms. Manjeet Chawla, Advs. for the appellant.

Abhijit Kumar Chattopadhyay, Sachin Pawwa, Amit Singh Rawat,Binay Kumar Das, Arun Aggarwal, Devesh Dubey, Ms. AnshikaAgarwal, Advs. for the Respondents.

The Judgment of the Court was delivered by DR DHANANJAYA Y CHANDRACHUD, J. 1. The presentappeal raises an interesting question of law. The Court is tasked withdetermining whether a death due to malaria occasioned by a mosquitobite in Mozambique, constituted a death due to accident. The appeal bythe insurer has been filed against the judgment of the National ConsumerDisputes Redressal Commission[1], which upheld a decision of the StateConsumer Disputes Redressal Commission[2]. The State Commission, infirst appeal, had upheld the award of a claim under an insurance policy.

2. Debashis Bhattacharjee, the spouse of the first respondent andthe father of the second respondent applied for a housing loan for anamount 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 ofan insurance scheme called “National Insurance Home Loan SurakshaBima”. On 25 August 2011, a policy was issued to cover the loan amountof Rs. 13.15 lacs with a term of 20 years commencing on 25 August2011. A single premium was paid against the policy. The policy was anon-life insurance product intended to provide insurance security to aperson who obtains a loan for constructing, purchasing or repairing aresidential house, flat or apartment. Section I of the policy insured thehouse against fire and allied perils, including earthquakes. Section IIinsured the borrower against personal accidents.

3. The insured was working as a Manager of a Tea Estate inAssam. He thereafter took up employment in 2012 as a Manager of a 1“National Commission”

2 “State Commission”

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ATea Factory at Cha-De-Magoma, District Gurue, Province-Zambezia,Republic of Mozambique. During his stay in Mozambique, the insuredwas admitted to the hospital on 14 November 2012. He was diagnosedwith encephalitis malaria and died on 22 November 2012 due to multi-organ failure. His death certificate issued by the Republic of Mozambiquespelt out the conditions and causes of death thus:B

“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.”

C

4. The heirs of the deceased filed a complaint under the ConsumerProtection Act 1986 before the District Consumer Disputes RedressalForum[3], North 24 PGS, Barasat alleging that the insurer had committeda deficiency of service in not settling the claim under the insurance cover.DIn the written statement filed by the appellant, it set up the plea thatSection II of the policy insured the borrower of the loan against personalaccident. Death due to malaria caused by a mosquito bite was, in thesubmission of the insurer, a result of an infection or disease and was notan accidental death under the terms of the insurance policy.

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5. By an order dated 28 February 2014, the District Forum allowedthe claim and called upon the insurer to pay the entire outstanding EMIsin respect of the loan to the Bank of Baroda. A statutory appeal wasfiled by the appellant before the State Commission[4]. The StateCommission by its order dated 2 February 2016 affirmed the order ofFthe District Forum, holding that a “sudden death due to mosquito bite ina foreign land” was an accident; it would be rather silly to say that it wasa natural death. The order of the State Commission was assailed inrevision before the National Commission. The National Commissionobserved thus:

“The term “accident” has not been defined in the policy whichthe deceased had taken and therefore contextual dictionarymeaning of the said term has to be taken for the purpose of decidingwhether the death of the deceased was due to an accident or not.

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3 “District Forum”

4 “the “West Bengal State Commission”

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An accident is something that happens unexpectedly and is notplanned in advance. It is defined as (i) as unpleasant event,especially in a vehicle, that happens unexpectedly and causes injuryor damage, (ii) something that happens unexpectedly and is notplanned in advance, in the Oxford Advanced Learner’s Dictionary(New 8[th] Edition). The word ‘accident’ is defined as (i) as accident,an unforeseen injuries occurrence, something that does not comein the usual course of event or that cannot be reasonablyanticipated, (ii) an unforeseen and injurious occurrence due tomistake, negligence, neglect or misconduct; an unanticipated anduntoward 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 anaccident, the National Commission held:

“It can hardly be disputed that a mosquito bite is something whichno one expects and which happens all of a sudden without anyact or omission on the part of the victim. In Consumer ComplaintNo. 223 of 2006, Shri Matber Singh versus Oriental InsuranceCo. Ltd. decided on 05.09.2014, this Commission noted that asper the information available on the website of the InsuranceCompany, an accident may include events like snake bite, frostbite and dog bite. Hence, it would be difficult to accept thecontention that malaria due to mosquito bite is a disease and notan accident.”

During the course of hearing Ms Madhavi Divan, learnedAdditional 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 wasrequired to give immediate notice of any change of business oroccupation;

(iii) No intimation was furnished by the insured of having taken ajob in Mozambique which was a material breach of the policycondition;

(iv) Malaria is a common occurrence in tropical countries, particu-larly so in Mozambique; A

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A(v) The death of the insured was hence not accidental, since theexpression ‘accident’ postulates an occurrence which isunnatural, unforeseen or unexpected;

(vi) It is well established that the expression ‘accident’ does notinclude disease and other natural causes;B

(vii) The insured died of multi-organ failure which may notnecessarily be a direct consequence of a mosquito bite;

(viii) The analogy drawn by the National Commission with a snakebite or a scorpion bite is inapposite; and C(ix) A variety of ailments can be caused on account of mosquitobites such as Dengue, Chikungunya and Zika, which ifunattended can lead to complications and result in death, but itwould be absurd to term the cause of death as an accident.

7. On the other hand, learned Counsel appearing on behalf of theDrespondents supported the decisions of the District Forum, the StateCommission and the National Commission. Counsel submitted thatsustaining the mosquito bite is by its very nature a matter of chance oraccident since it is unforeseen. Malaria traces its origin to a mosquitobite and hence, it was urged that a death which is caused as a result ofmalaria 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.F

2. Accidental loss of two limbs, two eyes or one limb and one eye.

3. Permanent total disablement or injuries other than that namedabove.”

10. The exclusions from Section II were:G“1. Loss of one limb or one eye

2. Any accidental injury or loss not mentioned under Section-II

above

3. Cumulative Bonus

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4. Education Fund

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5. Cost of transportation of the dead body

6. Persons below the age of 18 years at the time of disbursementof loan, and above 60 years at the end of repayment period

7. People having Hysteria

B

8. Death or accidental resulting from intentional self injury, suicideor attempted suicide

9. Death or injury from accident while under the influence ofintoxicating liquor or drug

10. Death or injury from accident caused by insanity or venerealdisease C

11. Death or injury from accident arising or resulting from theinsured committing any breach of law with criminal intent

12. War or war like operations

D

13. Lionising radiations or contamination by radioactivity

14. Loss by delay, loss of market or any other consequential orindirect loss or damage

15. Default in repayment of installments and or loan due to anyreason whatsoever except due to the occurrence of insuredperil.”

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In support of the submission that death due to malaria is a commonoccurrence in Mozambique, Ms Divan has adverted to the World HealthOrganization’s World Malaria Report 2018. According to it, in 2017, therehave been an estimated ten million cases of malaria in Mozambique andan estimated 14.7 thousand deaths. According to the World PopulationProspects 2017 Report published by the United Nations Department ofEconomic and Social Affairs, Population Division, nearly one out of threepeople in Mozambique contracted malaria.

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11. In our view, it would be appropriate to approach the issuewhich has been raised in the present case as a matter of interpreting theGconditions 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 ofIndia v Sunil Kumar Ghosh[5],this Court held that:

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5(1984) 4 SCC 246

A“13…An accident is an occurrence or an event which is unforeseenand startles one when it takes place but does not startle one whenit does not take place. It is the happening of the unexpected, notthe happening of the expected, which is called an accident. Inother words an event or occurrence the happening of which isordinarily expected in the normal course by almost everyoneBundertaking a rail journey cannot be called an “accident”. But thehappening of something which is not inherent in the normal courseof events, and which is not ordinarily expected to happen or occur,is called a mishap or an accident.”

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13. In a subsequent decision in Regional Director, ESICCorporation v Francis De Costa[6], the expression ‘accident’ wasdefined as follows:

“4…The popular and ordinary sense of the word ‘accident’ meansthe mishap or an untoward happening not expected and designedto have an occurrence is an accident. It must be regarded as anDaccident, from the point of view of the workman who suffersfrom it, that its occurrence is unexpected and without design onhis part, although either intentionally caused by the author of theact or otherwise.”

The same principle was adopted in Jyothi Ademma v PlantEEngineer, Nellore[7], where this Court held:

“7…the expression accident means an untoward mishap which isnot expected or designed.”

P Ramanatha Aiyar’s Law Lexicon[8], defines the expression‘accident’:F

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

GThe above Law Lexicon, relying on Lovelace v Traveler’sProtective Association[9], defines the expression ‘death by accident’

as:

6 1993 Supp (4) SCC 1007 (2006) 5 SCC 5138 3rd Edition, 2012H9 47 Am. St. Rep. 638

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

14. In order to constitute an accident, the event must be in thenature of an occurrence which is unnatural, unforeseen or unexpected.The present case concerns death caused due to a disease beingcontracted. Section II of the insurance policy covers death caused byaccident. Death or injury from accident caused by insanity or venerealdisease has been specifically excluded and not covered under the policy.The issue is whether death caused by any other disease not specificallyexcluded under the policy, is be covered. The issue whether a diseasecan be covered under the ambit of the expression ‘accident’ has beenanalysed in A W Baker Welford’s The Law Relating to AccidentInsurance[10], where it was stated:

“The word “accident” involves the idea of something fortuitousand unexpected, as opposed to something proceeding fromnatural causes; and injury caused by accident is to beregarded as the antithesis to bodily infirmity caused bydisease in the ordinary course of events.” (emphasis supplied)

Colinvaux’s Law of Insurance[11] elucidates on the ambit of theexpression ‘accident’:

“Accident excludes disease.It follows from the above principlethat a disease cannot be classified as an accident. Although diseaseproximately caused by an accident, in the absence of any exclusionfor disease will be covered by a personal accident policy,it is wellestablished that the word “accident does not include disease andother natural causes, and implies that intervention of some causewhich is brought into operation by chance and which can bedescribed as fortuitous.” (emphasis supplied)

The expression ‘accidental death insurance’ has been explainedin P Ramanatha Aiyar’s Advanced Law Lexicon[12]:

“Insurance that provides coverage in the event of death due toaccidental injuries, but not illness. In the event of death, payment 10 2nd Edition, 1932

11 10th Ed.by Robert Merkin

12 3rd Ed. (2005)

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

The treatises extracted above construe accidents and diseases asdistinct concepts. Baker Welford regards ‘accident’ as a term whichBdoes not include disease in the ordinary course of events. Colinvauxacknowledges that a disease caused as a proximate cause of an accidentwill be covered by a policy for personal accident, in the absence of anexclusion. But then it is also argued that the term accident does notinclude disease.

C15. Courts across international jurisdictions - including in the UK,US and Canada have interpreted the term ‘accident’. There is a finedistinction between the occurrence of a disease which may be consideredas an accident and a disease which occurs in the ‘natural course ofevents’. In 1861, the Queen’s Bench Division[13] in the UK was calledupon to consider whether a sunstroke suffered by a person while onDboard a ship in the course of performing his ordinary duties would amountto 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 ofthis nature, so as to draw with perfect accuracy a boundary linebetween injury or death from accident, and injury or death fromEnatural causes; such as shall be of universal application. At thesame time we think we may safely assume that, in the term“accident” as so used some violence, casualty, or vis major, isnecessarily involved. We cannot think disease produced by theaction of a known cause can be considered as accidental. ThusFdiseases or death engendered by exposure to heat, cold, damp,the vicissitudes of climate, or atmosphere influences, cannot, wethink properly be said to be accidental; unless at all events, theexposure is itself brought about by circumstances which may giveit the character of accident.Thus (by way of illustration), if, fromthe effects of ordinary exposure to the elements, such as isGcommon in the course of navigation, a mariner should catch coldand die, such death would not be accidental; although if, beingobliged by shipwreck or other disasters to quit the ship and take to H

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

the sea in an open boat, he remained exposed to wet and cold forsome time, and death ensued therefrom, the death might properlybe held to be the result of accident. It is true that, in one sense,disease or death through the direct effect of a known naturalcause, such as we have referred to, may be said to be accidentalinasmuch as it is uncertain beforehand whether the effect willensue in any particular case. Exposed to the same malaria orinfection, one man escapes, another succumbs.Yet diseases thusarising have always been considered, not as accidental, but as”proceeding from natural causes.

The Court contrasted the term ‘accident’ with an event that occursnaturally and held that death due to a sunstroke was not an accident:

“In the present instance, the disease called sunstroke, althoughthe name would at first seem to imply something of externalviolence, is, so far as we are informed, an inflammatory diseaseof the brain, brought on by exposure to the too intense heat of thesun’s rays. It is a disease to which persons exposing themselvesto the sun in a tropical climate are more or less liable, just aspersons exposed to the other natural causes to which we havereferred are liable to disastrous consequences therefrom. Thedeceased, 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 beconsidered 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 heldthat a rupture caused by an act of over-exertion would not fall within theambit of the term ‘injury by accident’. Lord Macnaughtenspeaking forthe House of Lords held thus:

“Now the expression “injury by accident” seems to me to be acompound 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 bydesign.”

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AThe 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 theparalysis was an “occupation” disease, which he should expect ina certain number of cases to follow on the work on which theBworkman was engaged. It was not unforeseen; it was notunexpected…

Injury by disease alone, not accompanied by an accident, isexpressly excluded, as pointed out by Lord Macnaughten in Fenton”v Thorley & Co.

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(emphasis supplied)

17. In Co-operators Life Insurance Company v RandolphCharles Gibbens[16], the Supreme Court of Canada was tasked withdetermining whether contracting a rare complication of herpes thatresulted in paralysis caused due to engagement in unprotected sex wouldDbe covered under the definition of ‘accident’. The Court held thus:

“59. In the present case the evidence is that genital herpes is asexually transmitted virus that spreads by sexual intercourse. Sexis its normal method of transmission. As such, unlike for example aninternally developing condition leading to an aneurysm, its transmissionErequires an outsider’s participation. But the same could be said ofinfectious diseases generally. Viruses and bacteria pass, directly orindirectly, from person to person, and occasionally across species.In the “ordinary language of the people”, an individual would not sayon coming down with influenza that “I had an accident”.We come downFwith the flu “in the ordinary course of events.”

(emphasis supplied)

18. As the law of insurance has developed, there has been anuanced understanding of the distinction between an accident and adisease which is contracted in the natural course of human events inGdetermining whether a policy of accident insurance would cover a disease.At one end of the spectrum is the theory that an accident postulates amishap or an untoward happening, something which is unexpected andunforeseen. This understanding of what is an accident indicates that 15(1905) 2 K.B. 232

H162009 SCC 59

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 classificationas an accident, when it is caused by a bodily infirmity or a condition. Aperson who suffers from flu or a viral fever cannot say that it is anaccident. Of course, there is an element of chance or probability incontracting any illness. Even when viral disease has proliferated in anarea, every individual may not suffer from it. Getting a bout of flu or aviral illness may be a matter of chance. But a person who gets the flucannot be described as having suffered an accident: the flu wastransmitted in the natural course of things. To be bitten by a mosquitoand 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 thenatural course of events cannot be regarded as an accident. Particularly,when the disease is caused in an area which is malaria prone. On theother hand, there may well be instances where a bodily condition fromwhich an individual suffers may be the direct consequence of an accident.A motor car accident may, for instance, result in bodily injuries, theconsequence of which is death or disability which may fall within thecover of a policy of accident insurance. Hence, it has been postulatedthat where a disease is caused or transmitted in the natural course ofevents, it would not be covered by the definition of an accident. However,in a given case or circumstance, the affliction or bodily condition may beregarded as an accident where its cause or course of transmission isunexpected and unforeseen.

19. Recently, in Gloria Wells v Minnesota Life InsuranceCompany[17], the United States Court of Appeals, Fifth Circuit, dealtwith a case where the question of law before the court was whetherdeath caused by a bite of a mosquito carrying West Nile Encephalitisvirus in Texas was covered under an accidental death insurance policy.The Court while remanding the case to the lower court on the disputedissue of facts, observed that the determinate, single act of a mosquitobite was not incidental to a body process and the mosquito, an externalforce produced an unforeseen result. However, this may be distinguishedfrom the facts in the present case. Malaria is most commonly transmittedto humans through malaria virus infested mosquito bites, and when avirus is contracted through normal means brought about by everydaylife it cannot be deemed to be an unexpected or unforeseen accident.

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

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A20. In a policy of insurance which covers death due to accident,the peril insured against is an accident: an untoward happening oroccurrence which is unforeseen and unexpected in the normal course ofhuman events. The death of the insured in the present case was causedby encephalitis malaria. The claim under the policy is founded on thehypothesis that there is an element of uncertainty about whether or whenBa person would be the victim of a mosquito bite which is a carrier of avector-borne disease. The submission is that being bitten by a mosquitois an unforeseen eventuality and should be regarded as an accident. Wedo not agree with this submission. The insured was based in Mozambique.According to the World Health Organization’s World MalariaCReport 2018, Mozambique, with a population of 29.6 million people,accounts for 5% of cases of malaria globally. It is also on record thatone out of three people in Mozambique is afflicted with malaria. In lightof these statistics, the illness of encephalitis malaria through a mosquitobite cannot be considered as an accident. It was neither unexpected norunforeseen. It was not a peril insured against in the policy of accidentDinsurance.

21. We are hence of the view that the interpretation placed on theterms of the insurance policy was manifestly incorrect and that theimpugned order of the National Commission is unsustainable.

E22. We have been informed during the course of the hearing thatthe claim under the insurance policy has been paid by the insurer. Wedirect in exercise of our jurisdiction under Article 142 of the Constitutionthat no recoveries shall be made. We have embarkedon the presentexercise since the issue raised in the present case will have a bearing onsimilar questions of interpretation in policies of insurance envisaging anFaccident cover.

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23. The appeal is allowed and the impugned judgment and orderof the National Commission shall stand set aside. There shall be noorder as to costs.

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Devika Gujral

Appeal allowed.

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