1. Words and phrases – Word ‘Accident’ under terms of insurance policy – Does not include death due to encephalitis malaria caused by mosquito bite

    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. 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. 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. The interpretation placed on the terms of the insurance policy was manifestly incorrect and that the impugned order of the National Commission is unsustainable.

    The Branch Manager National Insurance Co. Ltd v. Smt. Mousumi Bhattacharjee & Ors, AIR 2019 Supreme Court 1570.

  2. Dishonour of Cheque – Cheques issued in pursuance of agreement to sell – constitutes a legally enforceable debt – Complaint cannot be quashed: Negotiable Instruments Act, S. 138

    In present case, cheques were issued under and in pursuance of the agreement to sell. Though it is well settled that an agreement to sell does not create any interest in immovable property, it nonetheless constitutes a legally enforceable contract between the parties to it. A payment which is made in pursuance of such an agreement is hence a payment made in pursuance of a duly enforceable debt or liability for the purposes of Section 138. The question as to whether there was a dispute as contemplated in clause 4 of the agreement to sell which obviated the obligation of the purchaser to honour the cheque which was furnished in pursuance of the agreement to sell to the vendor, cannot be the subject matter of a proceeding u/s. 482 and is a matter to be determined on the basis of the evidence which may be adduced at the trial. The finding of the High Court that the cheques were not issued for creating any liability or debt, but ‘only’ for the payment of balance consideration and that in consequence, there was no legally enforceable debt or other liability cannot be acceptable. Hence, order of the High Court quashing complaint u/s. 138 of Negotiable Instrument Act holding that accused did not owe any money to complainant was erroneous and unsustainable.

    Ripudaman Singh v. Balkrishna, AIR 2019 Supreme Court 1625.

  3. Deficiency in service – Delay in handling–over possession of flat Refund of amount – Consumer Protection Act, Ss. 2(1)(g), (r)

    Purchaser entered into an agreement with builder for purchase of a flat. Builder obtained Occupancy Certificate after delay of more than 2 years. One side clauses in agreement constitute unfair trade practice and cannot bind purchaser. Purchaser justified in terminating agreement and cannot be compelled to accept possession. Purchaser entitled to refund of entire amount deposited by him with interest @ 10.7% p.a.

    Pioneer Urban Land & Infrastructure Ltd. v. Govindan Raghavan, AIR 2019 Supreme Court 1779.

  4. Probate of will – Succession Act, 1925, S.222 – Evidence Act 1872, S.68

    Executors, son and daughter-in-law of testator. Will written by testator in his own handwriting. At time of execution of will, he was in good physical health and sound state of mind without any undue influence or coercion. No objection from near relatives. Signature of all attesting witnesses recognized and exhibited by one living witness. Executors entitled to grant of probate of Will.

    In Re: In the Goods of Dhirendra Mohan Das AIR 2019 Patna 94.

  5. Secondary evidence – Photostat copy of pro-note produced as originals not Traceable – Evidence Act 1872, S.65 Comparison of signatures – Evidence Act 1872, S. 73

    Plaintiff stating that he had handed over original pro-note and receipt to his counsel but those were not found in his custody. Attesting witness stating that pro-note was attested on 6-5-2004, had seen original pro- note. Report regarding loss of original lodged on 21-3-2003. Story put forward by plaintiff that originals had lost from custody of his counsel, falsified. Failure of plaintiff to prove loss of original pro-note and receipt. Execution and attestation of same could not be read into evidence.

    Comparison of signatures from Photostat copy with standard signatures is impermissible.

    Gurdial Singh v. Dalveer Kaur AIR 2019 Punjab and Haryana 66.

  6. Word “trespass” – Means unlawful interference with one’s person, property or rights

    A “trespass” is an unlawful interference with one’s person, property or rights. With reference to property, it is a wrongful invasion of another’s possession. If a person enters on the land of another under an authority given him by law, and while there, abuses the authority by an act which amounts to a trespass, he becomes a trespasser ab initio, and may be sued as if his original entry were unlawful. Instances of an entry under the authority of the law are the entry of a customer into a common inn, of a reversioner to see if waste has been done, or of a commoner to see his cattle.

    Indira v Arulmighu Apparswami Kovil and another AIR 2019 (NOC) 175(MAD).

  7. Benami transaction – Burden lies on defendant to prove his claim – Benami Transaction (Prohibition) Act 1988, S.3 :

Plaintiff and defendant purchased parts of suit property from its co-owners, husband and wife respectively – Plea of defendant that as property was originally purchased by parents of wife as stridhan, husband is only trustee as per Dowry Prohibition Act, therefore, transaction between plaintiff and husband is prohibited under S.3 of Benami Transactions Act. No evidence by defendant to prove that property was purchased by parents of wife. Burden lies on defendant to prove his claim of benami transaction and not no plaintiff to disprove same – Plaintiff entitled to partition and separate possession.

Syriapushpam v. Sulochana. AIR 2019 Madras 143.

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