Malaria in Mozambique

Mozambique.png

The Court is tasked with determining whether a death due to malaria occasioned by a mosquito bite in Mozambique, constituted a death due to accident. Debashis Bhattacharjee was working as a Manager of a Tea Factory at Cha-De-Magoma, District Gurue, Province-Zambezia, Republic of Mozambique.

In order to constitute an accident, the event must be in the nature of an occurrence which is unnatural, unforeseen or unexpected. There is a fine distinction between the occurrence of a disease which may be considered as an accident and a disease which occurs in the natural course of events.

The present case concerns death caused due to a disease being contracted. The issue whether a disease can be covered under the ambit of the expression ‘accident’ has been analyzed in A W Baker Welford, The Law Relating to Accident Insurance, 2nd Edition, 1932
:

The word ‘accident’ involves the idea of something fortuitous and unexpected, as opposed to something proceeding from natural causes; and injury caused by accident is to be regarded as the antithesis to bodily infirmity caused by disease in the ordinary course of events.”

Sinclair v. Maritime Passengers Assurance, (1861) 3 E&E 478 considered whether a sunstroke suffered by a person while on board a ship in the course of performing his ordinary duties would amount to an accident. Cockburn C.J., held:

It is difficult to define the term ‘accident’, as used in a policy of this nature, so as to draw with perfect accuracy a boundary line between injury or death from accident, and injury or death from natural causes; such as shall be of universal application. At the same time we think we may safely assume that, in the term ‘accident’ as so used some violence, casualty, or vis major, is necessarily involved. We cannot think disease produced by the action of a known cause can be considered as accidental. Thus diseases or death engendered by exposure to heat, cold, damp, the vicissitudes of climate, or atmosphere influences, cannot, we think properly be said to be accidental; unless at all events, the exposure is itself brought about by circumstances which may give it the character of accident. Thus, if, from the effects of ordinary exposure to the elements, such as is common in the course of navigation, a mariner should catch cold and die, such death would not be accidental; although if, being obliged by shipwreck or other disasters to quit the ship and take to the sea in an open boat, he remained exposed to wet and cold for some time, and death ensued therefrom, the death might properly be held to be the result of accident. It is true that, in one sense, disease or death through the direct effect of a known natural cause, such as we have referred to, may be said to be accidental inasmuch as it is uncertain beforehand whether the effect will ensue in any particular case. Exposed to the same malaria or infection, one man escapes, another succumbs. Yet diseases thus arising have always been considered, not as accidental, but as proceeding from natural causes.”

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.

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.

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 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.

Hon’ble Justice Dr. D.Y. Chandrachud, The Branch Manager, National Insurance Co. Ltd. v. Smt. Mousumi Bhattacharjee, [Civil Appeal No. 2614 of 2019].