The Branch Manager, ... v. National Insurance C...

1. This order shall dispose of L.P.A No. 241/2002 and L.P.A No. 855/2002.

2. Though the said Writ Applications have been disposed of by different Hon'ble Judges under separate orders but as the questions raised in each of the writ applications are identical and require interpretation of the identical phrase on almost similar facts, we are disposing of both the 1.7.2002 L.P.A No. 241 of 2002 arises out of C.W.J.C No. 11174/2001 disposed of on 8.1.2002 while L.P.A No. 855/2002 arises out of C.W.J.C No. 7445/2001 disposed of on 1.7.2002 [reported in 2002 (3) PLJR 450]

3. In each of the matter the interpretation of the words—“the insurance is entitled to provide for payment of compensation in the event of death only resulting solely and directly from accident caused by external violent and any other visible means”, and the phrase “the insured shall sustain any bodily injury resulting solely and directly from accident caused by external, violent and visible means” is involved.

4. Though before the learned Single Judge certain facts were disputed but learned counsel for each of the appellants now did not challenge the facts but, however, confined their arguments to the legal question only. According to each of the appellants, the claimants were not entitled to any compensation because the death was not accidental or in any case the death did not result solely and directly from accident caused by external, violent and any other visible means.

5. It is contended before us that in each of the matter, the deceased did not suffer any visible injury, therefore, and as the death appears to be natural or at best as a result of some shock which cannot be said to be the result of an accident, the claimants would not be entitled to any compensation. The claimants on the other hand submitted before us that the Hon'ble Single Judges have properly appreciated the legal issues and after taking into consideration the present law and order situation of this State especially the fact relating to booth capturing and intimidation faced by the Election Officers, Polling Officers etc. were justified in awarding the compensation.

6. In each of the matter the insured was a Government servant who was assigned the election duty. The Election Commission much before assigning the duties entered into Insurance Agreement with different Companies, Memorandum of Understanding was recorded and a good fortune was paid to the Insurance Companies for issuing the policy cover/accident covers. In each of the matter, after the death of the insured government servant, the claims were lodged but in each of the case the Insurance Company repudiated the claim and refused to make the payment inter alia observing that the death was not an accidental death and was not covered under the terms of the policy. It is contended before us that in absence of any violent or any external injury or any visible injury or any violent injury leading to death, the accident policy would not become operative and the learned Single Judge in each of the case was wrong in awarding the compensation.

7. The question of jurisdiction of the High Court in a matter of insurance claim was raised before the learned Single Judge but after some arguments before us was abandoned and the counsel for the appellants simply submitted that they wanted an authoritative pronouncements from this Court interpreting the above referred phrase that “the policy would become operative in the event of death only resulting solely and directly from accident caused by external, violent and any other visible means.”

8. The first case on the present subject relating to liability of insurance is in Landress v. Phoenix Mut. L. Ins. Co. (1933) 291 U.S 491. In the said matter a distinction was drawn between ‘accidental result/death’ and ‘accidental means.’ That was a case of death by sun-stroke. The insured while playing golf succumbed to the heat and died. His beneficiary claimed the compensation under the policy on the ground that the death from sun-stroke was an accidental death. The majority rejected the claim and held that the claimants should demonstrate something unforessen or unexpected in the Act itself—“for here the carefully chosen words defining liability distinct between the result and the external means which produce it. The insurance is not against an accidental result.” The minority view of Cordozo, J. dissenting from the majority was as under:—

“Sunstroke, though it may be a disease according to the classification of physicians, is nontheless an accident in the common speech of men….. The suddenness of its approach and its catastrophic nature… have made that quality stand out when thought is uninstructed in the mysteries of science… Violent it is for the same reason, and external because the train of consequences is set in motion by rays of the sun beating down upon the body, a cause operative from without.”

“The attempted distinction between accidental results and accidental means will plunge this branch of the law into a Serbonian Boa. ‘Probably it is true to say that in the strict sense and dealing with the region of physical nature, there is no such thing as an accident.’.. on the other hand, the average man is convinced that there is, and so certainly is the man who takes out a policy of the accident insurance. It is his reading of the policy that is to be accepted as our guide, with the help of the established rule that ambiguities and uncertainties are to be resolved against a company.. The proposed distinction will not survive the application of that test.’

“When a man has died in such a way that his death is spoken of as an accident, he has died because of an accident, and hence by accidental means. So court of high authority have held..”

9. The dissenting opinion of Cordozo, J. in Landress and its effect on subsequent decisions by Courts have also been discussed in Mac Gillivray on Insurance Law, Fifth Edition, Vol. II, Pages 787, 788. It reads as under:—

“Divergence in modern American authorities. In Landress v. The Phoenix, where the United States Supreme Court decided by a majority that death by sunstroke was not death by “violent external and accidental means”, Cardozo, J. delivered a powerful dissenting opinion in which he held, in effect, that the use of the Phrase “external violent and accidental means” adds nothing to the problem which the court has to consider, which is in every case whether the death or disability was accidental in the usual sense of that word. This opinion has prevailed in a number of jurisdictions, including New York, where, as Conway, J. has said, “There is no longer any distinction made between accidental death and death by accidental means, nor between accidental means and accidental results.” (Burr v. Continental Travellers (1946) 67 N.E 2d 248) complete a cleavage now exists between the jurisdictions which have adopted the view of Cardozo, J. and those which have not, and how far-reaching effects of that cleavage are, can be seen from the following examples. Of the jurisdictions in which the view of Cardozo, J. has been adopted: in New York assureds who took an over-dose of veronal in an attempt to cure earache (Romsbachor v. Prudential (1937) 7 N.E 2d 18) who died from a dose of novocaine properly administered by a medical man (Aderblum v. Metropolitan Life (1940) 30 N.E 2d 728), and who exerted force to open a jammed desk and contracted hernia. (Simson v. Travellers Mutual Accident ((1942) 45 N.E 2d 457) have all recovered under accident policies in the form now under consideration. In Illinois, where the life assured spread petrol in a house with a view to arson, and was killed because it caught fire before he was ready, an innocent beneficiary recovered on the footing of death by accidental means; (Taylow v. John Hancock Mutual Life (1957) 142 N.E 2d 5) and in the district of Columbia, death by sunstroke has been held to be death by external violent and accidental means. (Raley v. Life and Casuality of Tenn (1957) 117A 2d 110, so also (Idaho) O'Neil v. New York Life (1944) 152P. 2d 70), and (Okhlahoma) U.S Fidelity and Gurantee v. Dowds (1950) 219 P. 2d 215). Of the jurisdictions which have followed the majority decision in Landress' case: In Washington it has been held that a death from a heart attack is within such a clause only if the action which led to the attack was unintentional; (Commercial Travellers v. Walsh (1955 228F. 2d 200) in Alabama, that injury resulting from looking, deliberately, at a blow-lamp at close range was not covered; (Emergency Aid Ins. v. Doobs (1955) 83 So. 2d 335; of Gay v. Pacific Mutual Life (1956) 237 F. 3d 448); in Ohio and N. Carolina, that the aggressor in a quarrel, who knows or ought to know that he will be in danger of bodily harm as a natural result of his conduct, cannot allege that the resulting injury was caused by accidental means; (Hirschfeld v. Kentucky Central Life and Accident (1951) 103 N.E 2d 839; Scarborough v. World Ins. (1956) 94 S.E 2d 558); but in California, although “accidental means” is in that stage given its strict interpretation, it has been held that fist-fighting is not likely to result in death, and that an assured who while so engaged, fell and struck his head on the pavement, died from accidental means; (Rooney v. Mutual Benefit Health and Accident (1947) 170 P. 2d 72); in Tennessee, assured was killed by playing “Willian Tell” with a pepper pot on his head, and his death, perhaps surprisingly, was held not through accidental means. (Beker v. National Life and Accident (1956) 298 S.W 2d 715).”

10. Before proceeding further in the matter it would be necessary for us to consider the meaning and definition of the words to properly appreciate the distinction between ‘accidental result’ and ‘accidental means’. The restrictive words used in the policy will have to be properly appreciated. The words are external violent and visible means.

11. The word ‘accident’ has been defined in different dictionaries as under:—

“Accident. 1. An unintended and unforessen 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 mistake, neglect, or misconduct-accidental, adj.

‘The word “accidental” 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 and Jean Appleman, Insurance Law and Practice: 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 substance through the ground. Qualification of a particular incident as an accident seems to depend on two criteria: 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 3d. 1996).”

12. The word ‘accident’ is also defined in following terms:—

“Accident; Accidental; Accidentally. The courts have established a long line of cases which identify the essential characteristics of an accident as an event which was neither expected nor intended and which causes hurt or loss (Hensey v. White (1990) 1 Q.B 481; Fenton v. Thorley (1903) A.C 433; Boyle v. Wright (1969) V.L.R 699; R.V Pico (1971) R.T.R 500).”

“In deciding for the purposes of an insurance policy whether an event was “accidental” a distinction has to be made whether the cause was the deliberate taking of an appreciated risk, and therefore not accident (Gray v. Barr (1971) 2. Q.B 554 where a person intending to scare another with a gun shot him, held not accident), and cases where the cause (such as excessive drinking) although a deliberate act, led to the taking of a risk (such as dangerous driving) which was not deliberate and not appreciated but which was nevertheless the immediate cause of the event (Chief Constable of West Midlands Police v. Bellingham (1979) 1 W.L.R 747).”

13. Coming now to the word ‘external’ used in the policy cover, it is defined as under:—

“EXTERNAL: In an insurance against “bodily injury caused by violent, accident, external and visible means” but excepting “natural disease, or weakness or exhaustion consequent upon disease”—“external” is used in contradistinction to such unnatural cases as disease or weakness.”

14. The words “violent” and “violence” are defined in the Black's Dictionary as follows:—

“Unjust or unwarranted use of force, usu. accompanied by fury, vehemencce, or outrage; physical force unlawfully exercised with the intent to harm. Some courts have held that violence in labour dispute is not limited to physical conduct or injury, but may include picketing conducted with misleading signs, false statements, erroneous publicity, and veiled threats by words and acts.”

15. From this definition it would clearly appear that “violent” would not mean only unjust or unwarranted use of force usually accompanied by fury, vehemence or outrage unlawfully exercised with intent to harm but in a given case it may include misleading signs, false statements, erroneous publicity and veiled threats by words and acts. Violent always is external and can be by physical acts, words of gesture. At this stage it would be necessary to look into Sections 349 and 350 of the Indian Penal Code. Section 349 defines ‘Force’ while Section 350 defines ‘Criminal Force’. Force, Criminal Force and Assault are different terms and have been so understood by law. Criminal force is application of intentional force to any person, without that person's consent, in order to the committing of any offence, or intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the force is used. At this stage it would be necessary to refer to Section 503 of the Indian Penal Code. Section 503 of the Indian Penal Code refers to Criminal Intimidation which reads as under:—

“Criminal Intimidation—Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.”

16. From the above referred definition it would clearly appear that intimidation in form of a threat or an injury to a person, his reputation or property etc. would be an offence. In a case of criminal intimidation or in a case of use of criminal force, causing or sufferance of the injury is not necessary. In each of the matter the offence is completed the moment the force is used or intimidation is extended. In each of the matter the act is violent one. In the present matters, it appears that the Insurance Companies are belabouring under misapprehension that unless the person suffers an external visible injury by external visible means the Insurance Company would not be answerable to it. In our opinion, the phraseology used in the cover does not have the scope to read external visible injury. The phrase simply says—“in the event of death only resulting solely and directly from accident caused by external violent and any other visible means.

17. For application of the said phrase, the claimant is required to prove that the death was an accidental death that means an unexpected death; there was some external force; there were some violence and the visible means were used. In each of the case, it is the case of the claimant that threats were extended. Now it cannot be disputed that the threats were external, were violent and were coming out from the mouth of or could be deduced from the action or gesture of a living person. Under these circumstances it would be necessary to observe that the means were also visible. If somebody puts a loaded gun on the chest of a man and threatens him of a dire consequences, can it be said that the act was not external violent and the means were not visible. In each of the case either because of the intimidation or the threat or the injury or apprehending that further injury is likely to be caused or if the illegal orders are not observed, each of the government servant was likely to suffer more under the hands of such criminals and considering its effect his heart failed then the effect of the rampant act is apparent. It cannot be argued that each of the man did not die of a violent death. In fact, it was an accidental death because none could anticipate that while discharging the official duty that the man would meet the hooligans or criminals, and such person would extend him threat or cause injury to his person.

18. The learned single Judge certainly was justified in observing that a person who knows about Bihar and the Election Process would immediately accept the news as right. It is not uncommon in this State that threats are given to the members of the polling party on the eve of election so that one or the other candidate may go for booth capturing or in the alternative may cast or poll illegal votes. If in either of the case immediate measures were not taken the same is not going to make much of the difference because death of one of the Officers was not going to affect the election for achieving the democratic set up. Sacrifice of one or the other is considered to be negligible by the Election Commission and probably for this simple reason after the rejection of the claimant's claim, they did not proceed in the matter left the petitioner unprotected and required the petitioner to come to the Court to file the writ application and contest the same. If the Election Commission wants the Government servant to work for the Election Commission then it must take proper care of the Officers and their family members not only by paying the premium to the Insurance Companies in crores of rupees but by observing that what is assured by the Election Commission and the Insurance Companies is respected. People go on election duty because non-compliance of the order is held to be misconduct. If liberty is given no body would accept the election duty. The Election Commission should come out of its ivory tower, face reality and fight for causes of those who respect its orders and dependants/claimants who have lost their bread-earners do not lead a life of vagrancy and are not required to run from pillars to post.

19. At this stage it would be useful to quote a passage, from Law of Insurance by Raol Colinvaux (Fifth Edition) discussing the effect and impact of the expressions “violent, external and visible.”

“That was because such words as ‘violent’, ‘external’ and ‘visible’ have been given wide meanings, practically co-extensive with ‘accident’.

“Thus, ‘violent’ does not necessarily imply actual violence as where the assured is bitten by a dog. ‘Violent means’ include any external, impersonal cause, such as drowning, or the inhalation of gas, or even undue exertion on the part of the assured. The word ‘violent’ is merely used in antithesis to ‘without any violence at all’.

“Similarly ‘external’ is used to express anything which is not ‘internal’ and any cause which is ‘external’ in this sense is also ‘visible’ within the meaning of an accident policy. 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 deceased.”

“Thus, the words ‘by violent, external and visible means’ add little if anything, to an accident policy and have been adversely criticized by the court of appeal.” (Re: United London and Scotish Insurance, Brown's claim (1915) 2 Ch. 167).”

20. In our opinion, in each of the matter the Insurance Company cannot be allowed to gainsay that the death was not an accidental death as a result of external violent and visible means.

21. In the matter of Ranjanibai Jamnadas Champsey…Plaintiff; v. New India Assurance Co. Ltd.,…Defendants. (A.I.R 1956 Bombay 633) while interpreting the words, Hon'ble Mr. Justice Desai, as he then was, has observed that:—

“If I had found myself compelled to accept the construction and meaning urged on behalf of the insurers I should not have hesitated to use the oft-quoted words of Lord Esher in ‘Cole v. Accident Insurance Co.’ (1899) 5 T.L.R 736 (B), where it was said: “I hold that this is a policy not to be praised and people ought to be warned against insuring under policies in that form”. And even if I had felt that there was ambiguity in the policy I should have followed the rule that words ought to be construed “contra proferentes” and held that the insurers should be held liable because they had not clearly exempted themselves”.

22. His Lordship also observed-

“18. But I am unable to read the clause as Mr. Mody would want me to do. The way I read the clause is that death of the assured must be caused by bodily injury solely and directly accidental and this must be caused by outward violent and visible means. Indubitably in this clause there is an attempt to define the event assured against by a form of words common in insurance policies of this nature.”

“But the words, in my judgment, aim only to emphasize that the death must not only be accidental; it must be caused by violent, external and visible means. These expressions ‘violent’, ‘external’ and ‘visible’ have come up for consideration before the Courts in England and it has there been held that the word ‘violent’ is used in this connection to express antithesis to “without any violence at all”. The word ‘external’ expressed antithesis to ‘internal’. Any cause which is not internal must be external. The injury need not be external. There may be nothing on the surface of the body to disclose its existence. The word is intended to make it clear that causes such as disease which may arise within the body of the assured are excluded from the scope of the policy.”

“The decisions of Courts of England are to be found quoted and summarised in Halsbury's Laws of England, (2nd Edition) Vol. 18, at page 535, para 849, to which my attention was drawn by learned counsel on either side. It is there stated that where the actual cause of the injury is external the fact that it is brought into operation by some internal cause has to be disregarded. Thus, if the assured is seized by a fit and is drowned or falls in front of a train and killed death is due to external cause.”

“As to ‘visible’ it has been held in England that any cause which is external is visible within the meaning of the policy. The statement of law referred to above clearly goes to support the view that injuries received from a fall must be regarded as external injuries. It also appears that the words “external, violent and visible” have been given wide meaning by Courts in England and have been regarded practically as co-extensive with the word “accidental”.

“It is also clear that in most of the cases cited in support of the above statement of law from Halsbury's Laws of England the decisions were mainly on the question whether or not the particular injury was caused by accidental means.”

23. ‘Springs of human action do not always flow from sources influenced by prudence and caution’ are in fact the key words for appreciating the present conditions and the election conditions in especial. One who knows the reality would not close his eyes from it but the one sitting in the ivory tower would always talk of the deteriorating conditions and would always go in search of el dorado. This is the high time to say that everything which glitters is not gold and every transparent stone which shines is not a diamond. Though the Election Commission talks of high morale and values but at the same time is not rising to the occasion and is not looking into the interest of thousands and thousands of the persons who under the directions of the Election Commission are leaving their home towns and are going to the far-off places to see that the democracy triumphs and the Government of the public, by the public, for the public is elected. The Election Commission is not to look after the election of the Government but it has to be looked after by the public which elects the Government. Can it be said that the people who had gone to discharge their election duties were not human beings or were not the citizens of this country or were not members of human race. In our opinion, they did have the right of franchise. They were part of the Government and they were entitled to elect the Government. The act of the Election Commission in not supporting the petitioners obviously has to be condemned. In our opinion, the death of each of the Government employee was in the circumstances which are covered by the policy. The stand of the Insurance Company that the death was not covered by the Insurance because there was no bodily injury on the person of the deceased is plainly misconceived because in view of the observations made aforesaid, the presence of a visible injury on the body is not necessary for attracting the cover of the policy. The submission of the learned counsel for each of the appellant that even if the death is accidental it was not resulted from violent external or other visible means is misconceived. We have already observed that the death is covered under the policy.

24. Taking into consideration the totality of the circumstances and the facts, we are of the considered opinion that each of the appeal deserves to be dismissed. Each of the appeal is dismissed with costs. Each of the respondent (petitioner) shall be entitled to costs of Rs. 2,500/- (Two thousand five hundred) from the respective insurance Company.