Full Judgment
M.P. Chandrakantharaj Urs, J.
1. The petitioners is aggrieved by the letter written by the manger of the Unit Trust of India dated December 27, 1985, by which the claim for payment of the insured amount on the death of his wife in whose favour a policy had been taken has been rejected. Her death is alleged to have been the result of negligence on the part of one Dr. Sulochana Gunasheela resulting in accidental death.
2. The letter impugned in the petition states that the death of the petitioner's wife does not fall within the definition of 'accident' as laid down in the rules of the scheme. It also refers to the fact that the petitioner had admitted that his wife suffered from fibroids in uterus at the time of joining the Unit Linked Insurance Plan, 1971, which had not been disclosed and that, therefore, the petitioner's claim was rejected.
3. It is difficult to hold the death due to the alleged negligence of the doctor should be equated to a death by accident. one decision of the Kerala High Court, relied upon by the learned counsel, does no more than state a factory workers, thought murdered when he was outside the factory, was entitled to claim workmen's compensation as if it was on account of an accident that occurred inside the factory premises. The reasoning , correctly is that the factory worker went outside the factory for the purpose of the work of the factory and, in the course of the work, he was murdered, and, Thoman (1979) 54 FJR 556 (Ker)). That was a claim under the Workmen's Compensation Act, 1923, and it is beneficially construed in favour of the workman who was unfortunate enough to have been killed by some persons when he was performing errand for his employers who were the factory owners.
4. Once negligence is attributed or the alleged death is due to that negligence and no other cause, then cause being accidental disappears. If it is asserted that it is accidental, them negligence, being filed against the doctor for negligence. If negligence is established, the petitioners will be entitled in that suit for such compensation as that court may award. But, it will be still open to doubt whether death could be considered due to accident.
5. Normally, in insurance policies, 'accidents' are defined to include mishaps which occur to any person who, but for the mishap, would not have been injured or killed. Unfortunately, the learned counsel has not made available the definition of the term 'accident' in the rules, as defined in the rules of the scheme refereed to by the manager in his letter impugned. In the absence of such consideration of the definition, it is prudent to go the dictionary meaning of the word 'accident'.
6. Without prejudice to the right s of the petitioner to assert his rights in civil, suit either against the surgeon, who is said to have been negligent, or against the insurance company, this writ petitions is rejected.