Sanjeev Kumar, J.

CM No. 5495/2019

1. This is an application by the National Insurance Company Limited ["the Insurance Company"] seeking condonation of delay of 61 days in preferring an appeal against the order of Jammu & Kashmir State Consumer Disputes Redressal Commission, Jammu dated 16.04.2019.

2. Despite notice, the respondent has chosen not to file any objections.

3. We have gone through the application for condonation of delay in which the Insurance Company has sought to explain the delay of 61 days on the ground that some time was taken to obtain sanction from the Competent Authority to file appeal and also that summer vacation in the High Court intervened in-between. It is submitted that after completing the requisite formalities and obtaining sanction from the Competent Authority, panel counsel was contacted and ultimately the appeal was filed.

4. Be that as it is, the explanation tendered by the appellant in the absence of any rebuttal thereto by the respondent, is required to be accepted. We are, thus, of the opinion that the appellant has shown sufficient cause for not preferring the appeal within time. The application is, therefore, allowed and delay in filing the appeal is condoned.

FAO(D) No. 21/2019

5. This miscellaneous appeal arises out of an order dated 16.04.2019 passed by the Jammu & Kashmir State Consumer Disputes Redressal Commission, Jammu ["the Commission"], whereby a consumer complaint filed by the respondent has been allowed and the appellant directed to pay an amount of Rs. 3.00 lakh along with interest @ 10% from the date of death till its realization along with litigation expenses of Rs. 20,000/-.

6. Contextual facts, which are relevant for disposal of this appeal, are that the husband of the respondent was insured with the appellant through his employer Central Industrial Security Force (CISF) vide Group Personal Accidental Insurance Policy bearing No. 251100/42/15/82000090 ["Insurance Policy"]. The Insurance Policy was valid for the period w.e.f. 04.01.2016 to 03.01.2017 and the respondent was nominee of her husband, namely, Balbir Singh (now deceased).

7. A complaint was filed by the respondent before the Commission alleging, inter alia, that her husband, a Constable in CISF, complained of vomiting and dizziness on account of which he was referred to NHPC Hospital, Surgani in District Chamba. The deceased was discharged after treatment but during the night he again started vomiting and was taken to District Hospital, Chamba where a blood test was conducted upon him. It was found that the kidney of the deceased was infected. The deceased was referred to Amandeep Hospital, Amritsar where he remained under treatment from 06.04.2016 to 10.04.2016. He was diagnosed with acute infection of kidney and liver. On deterioration of his condition, he was shifted to DMC Ludhiana where he remained under treatment till he died on 16.04.2016. The death summary issued by the DMC Hospital, Ludhiana indicates that the deceased died of Scrub Typhus.

8. It was averred in the complaint that the deceased, while being posted at Chamba, was bitten by Chiggers (mite larvae) Mites Orientia tsutsugamushi, which resulted into Scrub Typhus, which is a rickettsial infection. It was pleaded that rickettsial infections are those type of infections which are caused by an unusual type of bacteria that lived only inside the cells of another organism. These infections are spread through ticks, mites fleas or lice. It was, thus, pleaded that the death of the deceased, which occurred due to Scrub Typhus caused by chiggers bite was purely accidental and, therefore, the respondent, the nominee of the deceased, was entitled to seek reimbursement of the amount for which her husband was insured under the Insurance Policy.

9. The complaint filed by the respondent was opposed by the appellant herein. In the reply, the case set up by the appellant was that the deceased Balbir Singh was insured under the Insurance Policy, which covered only accidental deaths. The deceased had not died of any accident and, therefore, complainant was not entitled to be indemnified on this count. It was submitted that the husband of the respondent died because of kidney and liver infection and, therefore, such death could not be construed as an accidental death. It was also disputed by the appellant that there was any final diagnosis by any medical officer or medical expert that the deceased had died as a result of Scrub Typhus.

10. The matter was heard and considered by the Commission and having regard to the definition of the word "accident", as defined in various dictionaries, the Commission came to the conclusion that the death caused by a disease occurred due to an insect bite/mite larvae bite was accidental death and, therefore, the appellant could not escape from its liability to indemnify the respondent-nominee.

11. On scrutiny of medical record, in particular death summary issued by DMC Hospital, Ludhiana, the Commission found that the deceased was suffering from Scrub Typhus as a consequence of infection caused by mite larvae. It was, thus, held by the Commission that the death of the deceased was accidental. Vide order impugned dated 16.04.2019, the complaint of the respondent was allowed with the reliefs, which we have already noticed herein before.

12. The impugned order of the Commission is assailed before us by the appellant primarily on two counts:-

"a) That the deceased husband of the respondent had died of a disease of kidney and liver infection that happens in the natural course.

b) That the Policy of Insurance covered only "accident" which is sudden, unforeseen, involuntary event caused by external, visible and violent means."

13. Mr. C.S.Gupta, learned counsel appearing for the appellant-Insurance Company, relies heavily on the judgment of Hon'ble Supreme Court in the case of Branch Manager National Insurance Co. Ltd. v. Mousumi Bhattacharjee and others, (2019) 5 SCC 391 [LQ/SC/2019/544] and submits that the death by a disease which arises in natural course of things is not an accident. He argues that to be bitten by an insect and being infected with mite larvae may involve an element of chance, however, the disease which is caused as a result of such bite by an insect in natural course of events cannot be regarded as an accident.

14. Mr. Gupta further argues that under similar set of circumstances, Hon'ble the Supreme Court in the case of Mousumi Bhattacharjee (supra) has held that death due to malaria caused by mosquito bite is not an accidental death and, therefore, insurer cannot be burden with liability to indemnify the loss.

15. Per contra, Mr. Vishal Kapur, learned counsel appearing for the respondent, submits that it is very rare that a person is bitten by mite larvae and, therefore, cannot be compared with mosquito causing diseases like malaria, dengue, chikungunya etc. etc. He submits that these diseases which are not uncommon to Indians are caused or transmitted in natural course of events. He seeks to draw a distinction from the judgment of Mousumi Bhattacharjee (supra) by submitting that the rate of fatality of Scrub Typhus is as high as 46.3% depending upon the complications. He submits that bite by chiggers and contacting infection from mite larvae is a rare, unexpected and unforeseen event and, therefore, could be construed as an accident.

16. Having heard learned counsel for the parties and perused the material on record, two questions arise for consideration:-

"i) Whether death due to Scrub Typhus caused by chiggers (Mite Larvae) bite can be construed to be an accidental death or is a death caused by a disease in natural course of events

ii) If answer to question No. (i) is that it is an accidental death, whether it would be covered by the Insurance Clause providing death in an "accident" as a sudden, unforeseen and involuntary event caused by external, visible and violent means"

17. Indisputably, cause of death of the decease Balbir Singh, as indicated in death summary issued by the DMC Hospital, Ludhiana is Scrub Typhus. As per Centers for Disease Control and Prevention (CDC), Scrub Typhus also known as Bush Typhus, is a disease caused by a bacteria called Orientia Tsutsugamushi. It is spread to people through bites of infected chiggers (larval mites). The most common symptoms of Scrub Typhus include fever, headache, body aches and sometimes rash. Most cases of Scrub Typhus occur in rural areas of Southeast Asia, Indonesia, China, Japan, India and Northern Australia. Anybody living in or travelling to areas where Scrub Typhus is found can be infected. The people in the infected areas can reduce the risk of getting Scrub Typhus by avoiding contact with infected chiggers. The chiggers may be found where there is lot of vegetation and brush.

18. From the literature of the disease available in public domain, it could be gathered that it is indeed very rare in India that a person is bitten by infected mite larvae. It has also not come on record from either side, more particularly, from the appellant that the area where deceased husband of the respondent was posted i.e. village Surangani District Chamba, bite by infected mite larvae is common and a person who is bitten by it could reasonably expect such encounter with mite larvae at anytime. Such, however, is not the case with mosquito bites. Mosquito bites are not only common but in many areas unavoidable. It is not uncommon that the mosquito bites is a cause to many diseases like malaria, dengu, chikungunya etc. There are some times fatalities also by such diseases. As is rightly held by the Supreme Court in the case of Mousumi Bhattacharjee (supra) that death by aforesaid diseases caused by mosquito bites cannot be said to be accidental death, for, in such cases the diseases are caused or transmitted in natural course of events. The rare insect bite like bite by larvae mite is very unusual, unexpected and unanticipated. It happens by chance and if bite is by an infected larval mite, it can cause complications leading to death of the person bitten.

19. In the instant case also, as is diagnosed by the medical experts in DMC, Ludhiana, the husband of the respondent died of Scrub Typhus, which is caused by larvae mite bite. As we have held that such larval mite is rare and could happen to a person while walking through vegetations and bushes in the areas infested by chiggers. It is a bite like a snake bite, which is unforeseen, unexpected and opposed to something proceeding from natural causes.

20. We have carefully gone through the judgment of the Supreme Court in the case of Mousumi Bhattacharjee (supra), where Hon'ble Supreme Court after detailed discussion on the meaning of "accident", has, in the facts and circumstances of the case, come to the conclusion that death that was caused by encephalitis malaria, occurred due to mosquito bite cannot be regarded as an "accident". To arrive at such conclusion, Hon'ble Supreme Court relied upon the data presented by the World Health Organization in its World Malaria Report, 2018, which, inter alia, indicated that Mozambique, where the deceased in the aforesaid case had suffered mosquito bite, with a population of 29.6 million people, accounts for 5% of cases of malaria globally. It was also indicated in the report that one out of three people in Mozambique is afflicted with malaria. In short, Supreme Court took note of the statistics in respect of prevalence of malaria in Mozambique and concluded that the mosquito bite in Mozambique was an event common and expected and, therefore, could not be termed as an accident.

21. The facts of case on hand are, however, entirely different. We agree with Mr. Vishal Kapur, learned counsel appearing for the respondent, that there is subtle distinction between the two cases i.e. the one of mosquito bite, as was considered by the Supreme Court and the case in hand where the death is as a result of a rare, unexpected and unforeseen larval mite bite.

22. At this juncture, we would like to set out the conclusion of Hon'ble Supreme Court summed up in paragraph Nos. 18, 19 and 20 in the case of Mousumi Bhattacharjee (supra):-

"18. As the law of insurance has developed, there has been a nuanced understanding of the distinction between an accident and a disease which is contracted in the natural course of human events in determining whether a policy of accident insurance would cover a disease. At one end of the spectrum is the theory that an accident postulates a mishap or an untoward happening, something which is unexpected and unforeseen. This understanding of what is an accident indicates that 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 classification as an accident, when it is caused by a bodily infirmity or a condition. A person who suffers from flu or a viral fever cannot say that it is an accident. Of course, there is an element of chance or probability in contracting any illness. Even when viral disease has proliferated in an area, every individual may not suffer from it. 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 having suffered an accident: the flu was transmitted in the natural course of things. To be bitten by a mosquito and 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 the natural course of events cannot be regarded as an accident. Particularly, when the disease is caused in an area which is malaria prone. On the other hand, there may well be instances where a bodily condition from which an individual suffers may be the direct consequence of an accident. A motor car accident may, for instance, result in bodily injuries, the consequence of which is death or disability which may fall within the cover of a policy of accident insurance. Hence, it has been postulated that where a disease is caused or transmitted in the natural course of events, it would not be covered by the definition of an accident. However, in a given case or circumstance, the affliction or bodily condition may be regarded as an accident where its cause or course of transmission is unexpected and unforeseen.

19. Recently, in Gloria Wells v Minnesota Life Insurance Company No. 16-20831 (5th Cir.2018) the United States Court of Appeals, Fifth Circuit, dealt with a case where the question of law before the court was whether death caused by a bite of a mosquito carrying West Nile Encephalitis virus in Texas was covered under an accidental death insurance policy. The Court while remanding the case to the lower court on the disputed issue of facts, observed that the determinate, single act of a mosquito bite was not incidental to a body process and the mosquito, an external force produced an unforeseen result. However, this may be distinguished from the facts in the present case. Malaria is most commonly transmitted to humans through malaria virus infested mosquito bites, and when a virus is contracted through normal means brought about by everyday life it cannot be deemed to be an unexpected or unforeseen accident.

20. In a policy of insurance which covers death due to accident, the peril insured against is an accident: an untoward happening or occurrence which is unforeseen and unexpected in the normal course of human events. The death of the insured in the present case was caused by encephalitis malaria. The claim under the policy is founded on the hypothesis that there is an element of uncertainty about whether or when a person would be the victim of a mosquito bite which is a carrier of a vector-borne disease. The submission is that being bitten by a mosquito is an unforeseen eventuality and should be regarded as an accident. We do not agree with this submission. The insured was based in Mozambique. According to the World Health Organization's World Malaria Report 2018, Mozambique, with a population of 29.6 million people, accounts for 5% of cases of malaria globally. It is also on record that one out of three people in Mozambique is afflicted with malaria. In light of these statistics, the illness of encephalitis malaria through a mosquito bite cannot be considered as an accident. It was neither unexpected nor unforeseen. It was not a peril insured against in the policy of accident insurance."

(Emphasis by me)

23. From a careful reading of the judgment passed by the Supreme Court and the different meanings given to the term "accident" by different dictionaries and in the case law discussed in the judgment, we can aptly sum up the meaning of the expression "accident" to mean as under:-

"i) An accident is an occurrence or an event, which is unforeseen and startle one when it takes place but does not startle one when it does not take place.

ii) It is happening of unexpected and not happening of the expected which is called an accident.

iii) Happening of something which is not inherent in the normal course of events and which is not ordinarily expected to happen is a mis-happening or accident.

iv) An event that takes place without one's foresight or expectation; and event that proceeds from an unknown cause or is an unusual effect of a known cause and therefore not expected, chance, causality, contingency (Aiyar's Law Lexicon)."

24. From the aforesaid definition of "accident" discussed and expounded by the Supreme Court in Mousumi Bhattacharjee's case (supra), we can safely infer that the disease Scrub Typhus which became cause of death of the deceased was proximately caused by an accident i.e. rare, unexpected, unanticipated bite by infected larval mite. Unlike in the cases of death by malaria in Mozambique or even in India caused by mosquito bite, the event of a person suffering from larval bite (chiggers bite) is uncommon, unexpected and unforeseen. Atleast there is no data placed before us to conclude that like malaria Scrub Typhus by insect bite is common and something that is not totally unexpected, unnatural or unanticipated in the area of Surangani of District Chamba where deceased was afflicted.

25. For the foregoing reasons and discussion made above, answer to the question No. (i) is that death due to Scrub Typhus caused by chiggers (Mite Larvae) bite can be construed to be an accidental death. This brings us to question No. (ii) and to find answer to this question we need to refer to the relevant clause in the Insurance Policy. Clause 1 of the terms and conditions of the Insurance Policy in question reads thus:-

"1. Sustain death resulting solely 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.

(a) If such injury shall within twelve calendar months of tis occurrence be the sole and direct cause of the death of the insured person, the capital sum insured stated in the Schedule hereto, applicable to such insured person.

(b) Death of Defence and Para Military personnel, including their pilots and co-pilots, resulting directly and solely from an injury sustained because of an aircraft accident, and act of foreign enemy including terrorist activities in situation which is not declared war, including while conducting rescue operations for civilians during natural disasters like flood, and other such civilian operation, is covered under the policy.

SPECIAL FREE BENEFIT

In the event of the death of the insured person due to accident as defined in the Policy outside his/her residence, the Company shall pay in addition to the amount payable under Sub-Clause (a) (For transportation of insured person's Dead Body to the place of residence) a lump sum of 2% of Capital Sum Insured or Rs. 2,500/-whichever is less.

EXCEPTIONS

PROVIDED ALWAYS THAT:

The Company shall not be liable under this Policy for:

1. Payment of compensation in respect od Eath, from

(a) from intentional self-injury, suicide or attempted suicide,

(b) whilst under the influence of intoxicating liquor or drugs

(c) whilst engaging in Aviation or Ballooning whilst mounting into, dismounting from or travelling in any balloon or aircraft other than as a passenger (fare paying or otherwise) in any duly licensed standard type of aircraft anywhere in the world. This exclusion shall not apply to Defence personnel (Army, Airforce and Navy) and Para Military personnel including their pilots and co-pilots.

(d) Directly or indirectly caused by venereal diseases, aids or insanity,

(e) Arising or resulting from the insured person committing any breach of 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.}"

26. This Clause calls for interpretation of the expression "accident caused by external, violent and visible means". It is contended by Mr. C.S.Gupta, learned counsel for the appellant that even if we assume that the death which is proximately caused by the bite of larval mite is death by accident, yet it would not be covered by Clause (1) for the reason that this accident has not happened due to any external, violent and visible means. Learned counsel wants us to read the words external, violent and visible conjunctively, whereas the argument of Mr. Vishal Kapur, learned counsel for the respondent is to the contrary.

27. We are, as is discussed elaborately herein above, of the considered opinion that the death in the instant case is directly caused by the accident i.e. bite by infected larval mite. This we are saying on the basis of medical opinion on record that the deceased husband of the respondent died of Scrub Typhus caused by bite of infected larval mite. Whether this accident was caused by external, violent and visible means is question which needs little more pondering.

28. Indisputably, bite to a human being by an insect is an accident caused by external means. It is painful and, therefore, violent. However, such bite may sometimes be visible and other times go unnoticed, but, as per the information available, in some trustworthy sources, whenever a person is bitten by mite larvae it causes rashes, skin irritation and itching etc. So, as per Cambridge Dictionary, the meaning of "visible" is able to be seen, able or likely to attract attention and to be noticed. The bite by insect like bite by infected larval mite may not be seen by naked eyes but it will definitely be noticed the moment it bites. What is required by Clause (1) of the Insurance Policy is that death by accident covered by the Insurance Policy must be from an accident caused by external, violent and visible means. As is discussed above, an accident like bite by a snake or by an insect like mite larvae is always caused by external, violent and visible means. The Clause cannot be construed to mean that an accident like a bite by an insect must be seen by naked eyes by the person bitten. It would be sufficient, if it is caused by means that are noticeable and may not be actually noticed by the person at the time of occurrence.

29. For the foregoing reasons, we are not inclined to interfere with the well reasoned judgment of the Commission. This appeal is found devoid of any merit and the same is, accordingly, dismissed.

30. From the proceeding-sheets, it transpires that awarded amount deposited by the appellant in terms of order dated 22.07.2019, has already been released in favour of the respondent. Therefore, no direction is required to be issued to the appellant to satisfy the award. However, by way of abundance precaution, if any amount still remains unpaid in terms of the order impugned passed by the Commission, the same shall be paid to the respondent within one month from today.