Judgment

Nik Hashim J

1. This is an appeal against the decision of the learned judge of the sessions court which allowed the respondent’s/plaintiff’s claim for the sum of RM122,000 together with interest and costs pursuant to a personal accident insurance policy known as ‘Amsure Personal Accident Insurance Plan C No 94-711-H2 4819-01’ (‘the policy’) which was issued by the appellant/defendant to one Devia Nathan Savarimuthu (‘the deceased’). The policy guarantees payment in the event the policy holder is injured or died as a result of accident. On the 24 November 1994, i.e. during the currency of the policy from 21 February 1994 to 20 February 1995, it was alleged that the deceased was [translation] ‘killed in a fire incident at his own home’ (para 4 of the statement of claim). The beneficiary of the deceased’s estate claimed payment under the policy and the appellant had repudiated the claim.

2. The learned sessions court judge in his judgment at p 31 of record said [translation]:

   In this case it was an agreed fact that the deceased passed away after attempting to put off a fire, carried water pail from the neighbour's house. From the evidence of SP1 there are scratches on his shoulders, face and body. Based on the injuries it was highly probable that the deceased fell when carrying a pail of water to extinguish the fire. According to SP1 the physical pressure together with the anxiety and fall could trigger the heart attack. I am of the view that this situation is within the meaning 'accident'. And it was not the coronary disease that caused the said accident, but the contrary ....

   And he continued at p 32 and said [translation]:

   I hold that exemption clause in the policy of insurance inapplicable to this case.

3. It is the contention of the learned counsel for the appellant that the trial judge had erred in law and in fact when he held that the deceased died as a result of accident contrary to autopsy reports which state that the death of the deceased was caused by ‘myocardial ischaemia due to coronary disease’ which is a heart attack. Death caused by disease/infection is excluded from liability under the exclusion clause and therefore the death is not covered by the policy.

4. Learned counsel for the respondent, on the other hand, argued that the death of the deceased was accidental which was triggered by the fall and/or the excessive physical exertion or anxiety while the deceased was trying to put out the fire, and thus the learned judge was right to allow the respondent’s claim.

5. The central issue in this appeal is whether the deceased’s death was caused by accident or resulted from disease/infection.

6. In order to resolve the above issue, I consider it necessary to reproduce the autopsy report and the exclusion clause of the policy. The pathologist (SP1) from the University Hospital produced the autopsy report (P2) which states as follows:

   Cause of death 1. (a) Myocardial ischaemia due to (b) Coronary artery disease. Conclusions: 1. No external injuries which cause or contribute to death. 2. Death was natural. Sgd Dr Ong Beng Beng  Master of Pathology MBBS MBBS, MPath, MRCPath Sgd   Assoc Prof P Jayalakshmi MO Lecturer/Pathologist

7. The policy contained the exclusion clause at the back of the policy certificate and it states:

   Once an eligible individual has been accepted under the Amsure Personal Accident Insurance Plan C, his coverage will not be effective for the following: (1) .... (2) .... (3) .... (4) .... (5) .... (6) Disease/Infection .... This means that the Amsure Personal Accident Insurance Plan C excludes coverage for death, permanent disablement or any incurred medical expenses due to injury, resulting directly or indirectly from the above mentioned list. Hence, accidents arising from the abovementioned list are not covered and the insurer is not liable to pay any benefits.

8. It is to be noted that the agreed facts are only restricted to the facts [translation]: ‘the deceased passed away after attempting to put off a fire in the neighbouring house’ (P13 of record) (the deceased died after attempting to put out the fire on the neighbour’s house). The cause of death however, is disputed. The respondent’s case rested on the agreed facts and the evidence of the pathologist (SP1), while the appellant called the assistant manager (SD1) to testify on its behalf. This is what SD1 said, among other things, in his evidence:

   I classify his death as illness. This was based on the autopsy report. This illness is not covered under the policy – Deceased’s death is one of the illness not covered. (para B-C – p 21 of record) The autopsy report is crucial in order for the company to make payment. (para C p 23 of record)

9. Having considered the evidence and the submissions of counsel on the issue, I hold that there is much merit in the appeal. The policy in dispute is an insurance coverage for personal accident. The word ‘accident’ is not defined in the policy. In the absence of the definition, the word must be given its plain and ordinary meaning. The Concise Oxford Dictionary (9th Ed) defines ‘accident’ to mean:

   1.	an event that is without apparent cause, or is unexpected;
   2.	an unfortunate event, especially one causing physical harm or damage, brought about unintentionally.

10. To come within the policy it must be shown that the insured is injured by accident. The accident must be the proximate cause of the death. For example, where the insured by misadventure goes in front of a train and is run over (Lawrence v The Accidental Insurance Co Ltd (1881) 7 QBD 216); falls into a stream and is drowned (Reynolds v Accidental Insurance Co (1870) 22 LT 820); slips on a step (Theobald v Railway Passengers Assurance Co (1854) 10 Exch 45); is thrown from a horse (Re Etherington and The Lancashire and Yorkshire Accident Insurance Co [1909] 1 KB 591, (CA)); is suffocated by smoke from a burning house (Trew v Railway Passengers Assurance Co (1861) 6 H & N 839 at p 844), the insured is entitled to recover under the policy, subject to any exception in the policy, by which liability in respect of the particular misadventure in question is excluded (see Personal Accident Insurance (I) in General (Vol 25) para 595 at p 312). The exception may be so worded as to exclude disease, however caused, and then if the death is caused by an excepted disease, the insurers will not be liable even though the disease is proximately caused by accident (see Smith v Accident Insurance Co (1870) LR 5 Exch 302 at p 309; Jason v British Traders’ Insurance Co [1969] 1 Lloyd’s Rep 281). The burden is on the claimant to prove that the injury has caused the death in the manner provided by the policy independently of any other cause and that if the claimant cannot discharge that onus, his action must fail (see Leong Luen Kiew v The New Zealand Insurance Co Ltd [1939] MLJ (SSR) 173).

11. In the present case, the respondent failed to prove that the deceased died as a result of accident. Apart from the agreed facts that the deceased died after attempting to put out the fire on the neighbour’s house, there is absolutely no evidence to support the judge’s finding that there was physical exertion coupled with anxiety and a fall that caused the death. The finding of the learned judge that the situation was within the definition of ‘accident’ is a mere conjecture. So too, is the finding that the deceased ‘fell when carrying a pail of water.’ These findings are clearly unsupported by any evidence. There is no evidence that the deceased had fallen down and that he was carrying a pail of water. What was admitted as agreed facts is just that he died after ‘attempting to put out the fire on the neighbour’s house.’ In my view, the agreed facts do not constitute accident. What was told by the police to SP1 as to what had happened to the deceased prior to being sent to University Hospital, is plain hearsay. Although there were abrasions to the deceased’s shoulder, face and body, these did not cause the deceased’s death. SP1 in his evidence testified clearly that ‘no external injuries which cause or contribute to death.’ Therefore, the decision of the trial judge that ‘I am of the view that this situation is within the meaning 'accident'. And it was not the coronary disease that caused the said accident, but the contrary ....’ is indeed perverse. There is simply no evidence whatsoever to support such finding. In my judgment, the disease is the proximate cause of the deceased’s death, and the deceased died naturally from coronary artery disease, i.e. heart attack.

12. With regard to the exclusion clause, the respondent’s counsel argued that since the exclusion clause was not mentioned in the proposal form, it could not be part of the policy and therefore inapplicable in this case. On this point, the learned judge fell into error. It is to be noted that the policy under consideration is the third of such policy issued by the appellant to the deceased (p 22 of record). The deceased must have known of the exclusion clause which is stated at the back of the Certificate of Membership (p 72 of record) and the certificate states very clearly that the appellant promises to indemnify the insured deceased ‘according to the terms, conditions and exclusions detailed at the back of this certificate ....’ Even if there is any inconsistency between the policy and the proposal form, such inconsistency is of no consequence as the policy takes precedence, because it is the primary document which is prepared later in time than the proposal form and thus, represents the formal reduction of the contract in writing between the appellant and the deceased (see Syarikat Chin Seng Supermarket v Mui Continental Insurance Sdn Bhd [1997] 2 CLJ Supp 377).

13. The exclusion clause is very clear in its term and it means what it says. It is part of the policy. The clause excludes the insurer/appellant from liability in case of death, permanent disablement or any incurred medical expenses due to injury, resulting from ‘disease/infection’. Death caused by disease/infection is not covered by the policy. It is clear from the autopsy report of SP1 that the death was caused by ‘myocardial ischaemia’ due to coronary artery disease and he was of the view that the death was natural. This opinion was shared and certified by another pathologist, Dr Ong Beng Beng who together with SP1 signed the autopsy report (P2). Thus, with the clear and unchallenged medical evidence before the court, it would not be right for the learned judge to ignore the evidence and to make the finding contrary to facts before the court. To my mind, the deceased’s death comes within the exclusion clause and hence, the appellant is not liable under the policy. The deceased’s death was occasioned by a disease outside the risk which the exclusion clause applied. There is no ambiguity in the exclusion clause even though the type of disease was not specified therein. The sessions court judge erred in holding that the exclusion clause was ambiguous. Death from natural causes is clearly not personal injury by accident (Persin Kaur v The Renong Tin Dredging Co Ltd [1967] 2 MLJ 286 at p 288I).

14. The deceased’s caring action to put out the fire is highly commendable. Indeed, I sympathise with his family over his death. But sympathy is no ground for the grant of the personal accident coverage outside the policy.

15. For the reasons I have stated, I would allow this appeal, set aside the order of the sessions court, with costs to the appellant.

Cases

Etherington and the Lancashire and Yorkshire Accident Insurance Co, Re [1909] 1 KB 591

Jason v British Traders’ Insurance Co [1969] 1 Lloyd’s Rep 281

Lawrence v The Accidental Insurance Co Ltd (1881) 7 QBD 216

Leong Luen Kiew v The New Zealand Insurance Co Ltd[1939] MLJ (SSR) 173

Persin Kaur v The Renong Tin Dredging Co Ltd [1967] 2 MLJ 286

Reynolds v Accidental Insurance Co (1870) 22 LT 820

Smith v Accident Insurance Co (1870) LR 5 Exch 302

Syarikat Chin Seng Supermarket v Mui Continental Insurance Sdn Bhd [1997] 2 CLJ Supp 377

Theobald v Railway Passengers’ Assurance Co (1854) 10 Exch 45

Trew v Railway Passengers’ Assurance Co(1861) 6 H & N 839

Representations

K.S. Ong (K.S. Ong & Co) for the appellant.

K Goik (B.W. Yong & Co) for the respondent.

Notes:-

All translations from malay texts to english texts are not a part of the original judgment.

This decision is also reported at [1998] 7 MLJ 115.