NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI. ORIGINAL PETITION NO. 173 OF 2000 Mrs Padma Ramanathan Complainant Versus National Insurance Co. Ltd. Opposite Party BEFORE: HONBLE MR. JUSTICE M.B. SHAH, PRESIDENT. HONBLE MRS. RAJYALAKSHMI RAO, MEMBER For the Complainant Mr. Vikramjeet Banerjee, Adv. Mr. Vishal Pandey, Adv. For the Opposite Party Mr. Joy Basu, Adv. Mr. Maibam N. Singh, Adv. Dated:29.04.2008 ORDER
JUSTICE M.B. SHAH, J., PRESIDENT
The
only question involved in this complaint is – Whether death caused due to
drowning in a swimming pool can be considered to be accidental death in terms
of the insurance policy, which provides that the Insurance Company will pay to
the insured or his legal representative if at any time during the currency of
this policy the insured shall sustain any bodily injury resulting solely and
directly from accident caused by external, violent and visible means.
In
our view, in
the present case, the death caused to
the insured is an accidental death as it was not natural and that the insured did not intend to die by
drowning. Violent means includes any external, impersonal cause, such as
drowning or inhalation of gas or even undue exertion
on the part of the assured. In such cases, the death is not due to internal
cause and that any cause which is not internal must be external. But this does
not mean that the injury must be external. This is the law settled in England for the identical terms of insurance policy.
Facts;
Late Mr.N.Ramanathan was a partner of S.R.Batliboi & Co., a firm of
Chartered Accountants. The firm had
obtained a partners personal accident insurance policy from National Insurance
Company Limited (hereinafter referred to as the Insurance Co.) for the period
between 19.6.96 and 18.6.97 for a total sum of Rs. 25 lakhs. On 14th July, 1996, the insured went for swimming along with his children and wife at
Madras Gymkhana Club around 6.15 p.m. At about 7.25 p.m. the insured took his children out of the pool and instructed his wife
to attend their shower and change of clothes.
After 5 to 7 minutes when the wife of the insured came to the pool area she found commotion
at the pool as someone was found at the
bottom of the pool. When the body of the
deceased was pulled out by a couple of co-swimmers she came to know the drowned
person was her husband. The insured at
that time was unconscious. Extensive
efforts were made by persons present at the pool site to revive the
insured. As they could not succeed in
their efforts, the insured was rushed to the Apollo Hospital where he was declared dead at 2.15 A.M.
2. The firm which took the
policy informed the insurance company about the death of the insured on
19.7.1996. The Complainant (wife) also
informed the Opposite Party about the death of her husband. The insurance company repudiated the claim by
their letter dated 10.09.1999 wherein it has been stated as under:-
With reference to
the captioned claim we wish to inform you that it has not been established that
the death of the insured, Late N. Ramanathan has been caused due to bodily
injury solely and directly caused by the external violent and visible means and
therefore the claim does not come within the perview of the policy and no
liability whatsoever attaches to us for the alleged death of late N.
Ramanathan.
We are, therefore, filling away the papers
as NO LIABILITY which please note.
Hence,
the present complaint is filed before this Commission.
3. During the course
of hearing, it was pointed out that a similar claim of insurance was settled by
two other insurance
companies. Thereafter, after hearing the Ld. Counsel for the
parties exhaustively, by Order dated
21.11.2007 the Insurance Company was given an opportunity to reconsider its stand, after taking into
consideration the settlement made by the Life Insurance Corporation as well as
by the New India Assurance Co. Ltd. in similar matter. However, the Insurance Company had taken the
stand that it is not possible to settle the matter and that it requires to be
decided on merits.
Law on the
issue:
4. In this view of
the matter, we have heard the Ld. Counsel for the parties.
Before deciding this matter we would refer to
the law settled in England because most of the Insurance Companies have borrowed their forms of
the policy from their counterparts in England and the law settled on the subject by the English Courts can be the
basis for deciding the matter.
(a) In The Law of
Insurance by Raoul Colinvaux, Fourth Edition it has been stated by way of
illustration as under:-
17-13 Illustrations
of accidents
But if a man walks and stumbles, thus spraining his
ankle, the injury is accidental, for while he intends to walk he does not
intend to stumble. In Hamlyan v. Crown
Accidental Insurance the assureds injury was due to stooping forward to pick
up a marble dropped by a child as it rolled from him. He stood with his legs together, separated
his knees, leaned forward and made a grab at the marble, and in doing so
wrenched his knee. The injury was held
by the Court of Appeal to be accidental, on the ground that the assured did not
intend to get into such a position that he might wrench his knee.
Further illustrations of an accident within the meaning
of an accident policy are provided in cases where the assured was drowned while
bathing, where he sprained the muscles of his back in lifting a heavy
weight, even though it was in the ordinary course of his employment, and where
he took a poisonous mixture by mistake instead of medicine and died
immediately.
This would mean that drowning
while bathing is covered within the meaning of an accident policy.
Thereafter while discussing
the phrase which is used in the forms of the policy with regard to violent it has been observed as under:-
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.
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.
(b) Similarly, in Halsburys Laws of
England this aspect is considered in para 578 wherein it has been stated as
under:-
578. External and visible means. External means is used to point the
contrast with something internal. Any
cause which is not internal must be external, but this does not mean
that the injury must be external; there may be, and often is, nothing
externally visible to indicate the presence of internal injury at all. The effect of the term is therefore to
underline that disorders arising within the human body, without
ascertainable reference at all to anything coming from outside, are not
covered. Therefore, there are certain
classes of injury such as hernia, or of disease such as pneumonia or erysipelas
(skin infection), where the insured may or may not be entitled to recover,
according to whether he can show that some external, as opposed to some
internal, cause has operated as the effective cause. Similarly, if a man falls into a river and
is drowned or falls on to a railway line and is hit by a train it is immaterial
that he only fell because he had an epileptic fit; it he is alive when the
water get into his lungs and leads to suffocation, or when the train cuts off
his head thus stopping the motivating power to the heart, the cause of death is
drowning or decapitation and not the anterior fit.
Visible means
is an attempted refinement which has not succeeded in achieving any strictly
rational meaning. It has been held that
an external cause is necessarily a visible one.
(c) Similarly,
in the Insurance Law by MacGillivray & Parkington under the Chapter
Personal Accidents Policy it has been stated in paragraph 1791 as under:-
1791. Violent
means. Often the element
of violence in an accident will be as evident as the bodily injury; the insured
may, for example, be bitten by a dog or knocked down by a train or merely slip
and fall. In other cases it will not be
so obvious and it has been held that the phrase violent means is the antithesis
of without any violence at all. Thus
injury from any extra exertion such as stopping to pick up a marble may be
injury by violent means and the phrase seems to include almost any external
cause of injury such as drowning or the inhalation of gas.
5 In
the present case Ld. Counsel Mr. Joy Basu for the Insurance Company relied upon
the death certificate issued by the Apollo Hospital, Madras wherein cause of
death has been stated as under:-
Cardio-Respiratory arrest; Hypoxic-ischaemic
encphawpathy; Disseminated intravascular coagulation
accidental fresh water near drowning.
Thereafter
there is another certificate of the same date wherein it has been stated as
under:-
Accidental fresh water drowning;
hypoxic ischaemic encephalopathx; Disseminated
intravascular coagulation; cardiorespiratory arrest.
He
further submitted that the cause of death is because of cardiorespiratory and
not by drowning. In elaboration of the
said submissions he relied upon the opinion given by Professor and Head of the
Department of Forensic Medicine. That opinion is further explained by the
Professor in the following manner:-
Prolonged Swimming causes
exhaustion,
Exhaustion causes anoxia,
Anoxia leads to myocardial anoxia,
Myocardial anoxia causes acute
cardiac failure,
Acute Cardiac failure resulting in
silent
drowning.
6. In
our view this opinion would support the cause of the Complainant that the
insured died accidentally because of prolonged swimming which finally resulted
in silent drowning.
Further, there is no question
of intention on the part of the insured to die in such a manner. On the contrary after taking the bath for
some time he saw that his children were removed from the swimming pool and were sent for
shower bath along with his wife. Within
five to seven minutes when the wife came back she saw the unfortunate
event.
In
this view of the matter the stand taken by the Insurance Company cannot be
justified and hence,
we hold that repudiation of the claim is totally unjustified. It is to be reiterated that even the Life
Insurance Company and the New India Assurance Company Limited have accepted the
claim of the Complainant, and the terms of the LIC policy and the policy in the
present case are identical.
In view of the above discussion, this complaint is
allowed. The Insurance Company is
directed to reimburse the Complainant (wife of the deceased) the sum assured,
namely, the sum of Rs. 25 lakhs with interest at the rate of 12% per annum from
14.1.1997 till its payment. The
Insurance Company is also directed to pay the Complainant a sum of Rs. 50,000/- as cost of
litigation.
Sd/-
…J.
(M.B.
SHAH)
PRESIDENT
Sd/-
…
(RAJYALAKSHMI RAO)
MEMBER