ORDER
Date : 02.02.2016
DEBASIS BHATTACHARYA, PRESIDING MEMBER
This appeal has arisen out of the order dated 28.02.2014 in C.C No. 394/2013 passed by the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas (in short, District forum. By the impugned order, the Ld. District Forum has allowed the case. The case of the Complainants is that their predecessor, Debasish Bhattacharjee, purchased Flat No. 2C, 2ndFloor, "Onkar Enclave", Das Para, Chiriyamore, P.S. Airport, Kolkata 700 052, District North 24 Parganas, measuring about 82 Sq.ft. super built up area approx. and a car parking space at the ground floor as per schedule, at a total consideration of Rs.16,79,600/- by virtue of a registered deed of conveyance executed by Smt Rekha Malhotra, the owner of the land and M/s Omkar Realtor, represented by Sri Ashok Naha, Sri Partha Bhattacharya and Sri Debasish Adhikary, the developers, in favour of said Debasish Bhattacharjee at the office of the Additional District Sub-Registrar at Bidhan Nagar being Book No.1,C.D. Volume No. 16, Page 3319 - 2264, Being No. 11354 for the year 2012 and got possession of the said flat and the car parking space on 30.8.2012 from the said Omkar Realtor. Before such purchase, said Debashish Bhattacharjee applied for house building loan to
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the OP No. 2 on 16.6.2011, which was allowed by a letter dated 23.7.2011 amounting to Rs. 13,15,000/- vide loan A/c. No. 29540600004635, payable in 113 monthly installments @ Rs.19,105/-. He also availed the facility of "Bank of Baroda Home Loan Surakhsa Bima" of the OP No. 1 by paying one time premium being Policy No. 15450/48/119500003074 of a sum insured of Rs.13,15,000/-, i.e., total loan amount. He used to work as a Manager at Limuguri Tea Estate, Assam and joined as a Manager of a Tea Factory in Mozambique for a contractual service. He became sick and admitted at Nampula Central Hospital, Mozambique and died on 22.11.2012, and was cremated at Kolkata on 25.11.2012. Thereafter, Complainant No. 1 availed the insurance claim from along with all relevant documents to the office of the OP No. 1 on 21.1.2013 and informed the OP No.2 by a letter dated 14.3.2013 that she applied for claim against the policy to cover the loan amount to the OP No. 1 in order to liquidate the house building loan. Lastly, she through her Ld. Advocate, Shri Goutam Chakraborty sent a letter dated 06.3.2013 to the OP No. 1 with copy to the OP No. 2 to settle the claim, which was not acted upon. Accordingly, the case.
On the other hand, the case of the OP No. 1 is that it launched a new policy called 'National Insurance Home Loan Surakha Bima' with the Bank of Baroda as partner and bonded their Home loan customers as "Bank of Baroda Home Loan Surakha Bima". It was revealed that mosquito bite is not an accident under the said Suraksha Bima Policy nor does it fall under the definition of accident, that merits an insurance payout rather mosquito bite causing malaria is an infection and /or is a disease. So, it is not liable to settle any claim against the terms & conditions of the policy and the perils. Accordingly, the case be dismissed. It is considered if the impugned order suffers from any kind of anomaly so as to make any intervention in this appeal.
Decisions with reasons
Ld. Advocate for the Appellant has submitted that only in case of accident, the liability of the Insurance Company will be attracted. It is clearly a case of mosquito bite, which is not a violent and external and visible means, while a snake, scorpion bite attracts it. It was not at all an accidental death. There has been clearly mentioned in the National Insurance Home Loan Suraksha Bima Policy of the OP No. 1 that the perils as scheduled will be covered in which there has been bodily injury solely and directly caused by accidental, violent, external and visible means resulting in death or permanent total disability. Death by mosquito bite is only a disease as in the case of dengue. He mentioned that encephalitis is an acute inflammation (swelling up) of the brain resulting either from a viral infection or when the body's own immune system mistakenly attacks brain tissue and the most common cause is a viral infection. The affected person typically has a fever, headache and photophobia (excessive sensitivity to light) and there also be general weakness and seizures and may also experience nuchal rigidity (neck stiffness), which can lead to a misdiagnosis of meningitis. There may be stiffness of the limbs, slow movements, and clumsiness and may also be drowsy and have a cough. He also mentions that the word 'accident' excludes the operation of natural causes, and implies the intervention of some cause which is brought into operation by chance, and which can therefore be described as fortuitous. The fact that the particular consequence was not foreseen does not make it accidental if it was in fact the natural consequence of a cause which is not accidental. He has referred a decision of the Hon'ble Supreme Court reported in (2004) 8 SCC 644. Some decisions of the Hon'ble National Commission in RP Nos. 852/2013 and 2527/2012 and
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another reported in III (2015) CPJ 172 (NC). Ld. Advocate for the Respondent No. 1 and 2 has submitted that the whole motive of the policy is indemnify the insured in the case of perils arisen out of accidental death of the insured. He made out that death caused by a snake bite and the death caused by bite of malaria or malaria parasites are both accident and accidental. As to the definition of accident, he made out and submitted that it is an undesirable or unfortunate happening that occurs unintentionally and usually results in harm, injury, damage or loss and mishap, including automobile accidents. Such a happening resulting in injury that is in no way the fault of the insured person for which compensation or indemnity is legally sought and accident is an unforeseen event or one without an apparent cause. By citing Webster's New World College Dictionary, he mentioned that an accident is a happening that is not expected, foreseen or intended, which is unpleasant and unintended happening, sometimes resulting from negligence that results in injury, loss, damage etc. Further, he cited the Webster's New World Law Dictionary, in which it was stated that an accident is an unintended, unforeseen and undesirable event, especially one that causes harm, injury, damage, or loss, which is undesirable or harmful, that does not occur in the usual course of events under the circumstances in which it occurred or that would not be reasonably anticipated. In equity, an unexpected and injurious event not caused by misconduct, mistake, or negligence is accidental. He has cited one decision of the Hon'ble National Commission reported in IV (2012)CPJ 130 (NC).
Ld. Advocate for the Respondent No. 3 has submitted that it is actually another policy. There has been no single prayer against this Respondent. However, litigation cost of Rs. 10,000/- has been imposed upon this Respondent without any reason.
Death of an insured due to scorpion bite has been allowed by the Hon'ble National Commission in a decision reported in IV (2012) CPJ 130 (NC). A death may occur due to scorpion bite or may not occur. So, the case of mosquito bite, especially of that nature which causes encephalitis is highly fatal. This is really a misfortune on the part of the Complainants/ Respondent Nos. 1 and 2 to lose their husband and father, respectively, by his sudden death due to mosquito bite in a foreign land like Mozambique. It would be rather silly to say that it was a natural death. It squarely falls within the four corners of the term of 'accident'. So, there is hardly anything to alter the findings of the Ld. Forum as passed by the impugned order. The same is found to be a rightful one. It is affirmed. The appeal is dismissed.
[HON'BLE MR. DEBASIS BHATTACHARYA]
PRESIDING MEMBER
[HON'BLE MR. JAGANNATH BAG]
MEMBER
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