Life Insurance Corporation of India vs Anuradha

Doabia, J.—As to what would be the date of death when a person is not heard offer seven years, is a question the answer torn which would

determine the fate of this appeal. The circumstances under which this appeal has come to be filed in this court be noticed. This appeal is admitted.

With the consent of the parties it is taken up for final disposal.

Respondent Anuradha's husband namely Sham Prakash Sharma obtained an Insurance Cover for his life from the Life Insurance Corporation of

India. The policy so obtained was to commence with effect from 821986. The premium was to be paid every six months. The premium was paid

for two years. On 17.7.1988 Shri Ram Prakash was reported to be not traceable. At that point of time, he was at Bombay. The respondent

Anuradha lodged a report with police authorities. Later on she claimed the money payable under the Life Insurance Policy. She took a plea that

presumption should be deemed to have arisen in terms of Sections 107 and 108 of the Evidence Act. The argument was that as her husband has

not been heard of for seven years, therefore, he should be presumed to have died and the Insurance money should be given to her.

Further fact is that on 29.6.1996, the respondent approached the appellantInsurance Company, the Insurance Company informed her on 11th

of July 1996. this information was to the effect that the Insurance policy had lapsed on account of non payment of premium. The appellant

Insurance Company relied upon Rule 14 of the Rules dealing with such type of claims. For facility of reference, this rule is reproduced below:

Where a person is reported missing, it is to be advised to the claimant that Life insured will be presumed to be dead after 7 years on productions

of the decree form the court of law and in meantime policy is to be kept in force by making payment of premium regularly.

Thus stand taken by the Life Insurance Corporation of India was that:

i) that the respondentwife should have kept the policy alive for seven years: ii) that the presumption of death matures after the expiry of seven years

of a person reported to be missing.

As the claim was denied the respondentwife took the matter before the State Commission constituted under the Jammu and Kashmir Consumer

Protection Act 1987. The plea which is noticed above was taken before the Commission also. The above plea of the Life Insurance Corporation

was found to be devoid of merit. Presumption under sections 108 of the Evidence Act was drawn in favour of the claimant. The husband of the

respondentwife in her capacity as an heir was held entitled to the amount in question. The date of death was counted back and was taken to be the

date on which husband of the claimant was reported missing. It was also observed that the appellant Corporation cannot rely upon the Rule

reproduced above. Rule in question was held to be not having over riding effect over the statutory presumption contained in Section 108 of the

Evidence Act. Aggrieved against the verdict given by the State Commission, Life Insurance Corporation has filed this appeal.

The short question which arisen in this case is as to whether respondentclaimant was justified in contending that on account of the provisions

contained in section 108 of the Evidence Act, the death of her husband could be presumed to have taken place on the date he was reported

missing.

Independently of presumption which can be raised"" under section 108 of the Evidence Act, the question arises as to whether a presumption can

be drawn even under section 114 of the Evidence Act.

Before dealing with the questions which have been posed in this petition, it would be apt to notice the provisions of Section 107 and 108 of the

Evidence Act. These provisions read as under:

Burden of proving death of person known to have been alive within thirty years: when the question is whether a man is alive or dead, and it is

shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it.

Burden of proving that person is alive who has not been heard of for seven years:provided that when the question is whether a man is alive or

dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the

burden of proving that he is alive is shifted to the person who affirms it.

The above two statutory provisions are founded on the presumption that things once proved to have existed in a particular state are to be

understood as continuing in that state until contrary is established. This can be established by evidence either direct or circumstantial. Section 107

deals with the presumption of continuance of death. In view of the above presumption of continuance of life, as contemplated by Section 107 of

the Evidence Act, the Legislature thought it apt to provide for the counter presumption where a person's death would seem more likely from the

nature and the circumstances of the case than the continuance of life. It is in these circumstances, the judicial decisions came to delivered. These

decisions are to the effect that where a person in continually absent from his normal abode for a period of seven years and is not heard of by

persons who would have naturally received intelligence from him, he is presumed to be dead. In these circumstances the burden of proving that he

is alive is shifted to the person who affirms that he is not dead. It is a rebuttal presumption. Section 108 thus appears to be in nature of a proviso to

Section 107. Section 108 does not require that the court should hold a person dead at the expiration of seven years indicated therein but merely

provides that the burden of proving that he is alive at the time of filing suit is shifted to the person who affirms it. It is again well established that the

presumption exists merely to the fact of death at the expiration of seven years but not to the time of death at any particular period i.e. there is no

presumption that the death took place after the end of period of seven years or at any other particular time within that period. It would thus be

erroneous to apply both section 107 and 108 to one and the same situation. This is because a person cannot at the same time both be alive and

dead. Section 108 comes as a proviso to Section 107. But to a case where Section 108 is attracted, Section 107 can have no application. See

Sarojni Vs. Siva Badan AIR 1956 SC 129.

There is a presumption in favour of the continuance of human life. This presumption of continuance is not of law but of fact. Though, there is no

presumption of law as to the continuance of life, an inference of fact might legitimately be drawn that a person alive and in health at a certain time

was alive at a short time after. If a person is not heard offer seven years, there is a presumption of fact of death on the expiration of period of seven

years but the expiration of time of death is not matter of law and the onus of proving the death of the person at any particular time within seven

years lies upon the person who claims right to the establishment of which fact is essential. The precise time of death has to be established At the

same time independently of Section 108, a court can drawn an inference as to the time of death of a person who has not been heard of for long.

This can be done by resorting to Section 114 of the Evidence Act. See Badal Vs. Saraswati AIR 1927 All 687.

There are judicial pronouncement to the effect that when a person is not heard of for seven years and no specific date of death is proved then

the earlier date of death which can be presumed can only be the date on which legal proceedings are initiated. There are again judicial

pronouncement to the effect that Section 108 raises a presumption of death at the end of continuance absence of seven years and not at the time

the dispute arise. The fact, however, remains that the weight of judicial pronouncement is in favour of the proposition that there is no presumption

as to the time of death. This is a question of fact to be ascertained like any other fact.

From what has been said above, it can be said.

(i). that a person who has not been heard of for seven years by those who if he had been alive would have heard of him is presumed to be dead.

(ii) there is no presumption as to the time during seven years at which he died,

(iii) the onus of proving the death on any particular date rests with the person to whose title the proof of the fact is essential,

(iv) the above presumption has been held to apply even though there could be strong reasons for the person concealing his identity.

(v) independently of Section 108, a court can draw an inference as to the time of death of a person who has not been heard offer a long.

Some judicial pronouncements dealing with this aspect of the matter be noticed.

In William's Vs. Scottish Widow's Fund 188; 4 T.R 489, a person whose life was insured was not heard of for seven years. It was held that when

this is the situation, then the beneficiaries are entitled to have the insurance money paid to them. In AIR 1963 Mysore 115, it was observed that

Section 108 merely deals with the procedure to be followed when a question is raised before a court as to whether a person is alive or dead. In

the above case, the material point was the date of adoption i.e. 15th of August 1955. It was established that the person to whom the adoption was

made, was not heard of by persons who should have been heard by him if he was alive for seven years prior to 15th of August 1955. It was held

that the presumption would be that he was dead on or before 15th August 1955.

In the present case, the respondent Anuradha's husband Sham Prasad was not heard of for seven years to be counted w.e.f 17th April 198 8.

In these circumstances, the premium was not paid. The State Commission came to the conclusion that the presumption would be that Sham Prasad

died and, therefore, the respondent was entitled to claim the insurance money.

We are of the opinion that no exception can be taken to the view so expressed by the State Commission. The Life Insurance Corporation has

placed reliance on a rule which requires that in case a person is not heard of for seven years, then the policy must be kept alive by paying the

premium. This Rule cannot affect the claims of the respondent. When a finding is recorded that the person who had insured his life had died on the

date which is so given by the claimant, then the question of making the payment of the premium w.e.f the date she claiming that her husband had

died then there was no requirement to pay the premium. Independently of Section 108, a presumption can be drawn under Section 114 of th Act.

This presumption was rightly drawn by the State Commission. In view of the above, the reliance placed on the rule referred to above by the

appellants is of no consequence. William's case supra deals with similar situation.

This appeal is found to be without merit and is dismissed with costs of Rs. 20007