Presumption of death of a person if he has not been heard of for a period of 7 years

 2010ACJ479, AIR2008Bom196, 2008(6)BomCR311, 2008(5)MhLj757

IN THE HIGH COURT OF BOMBAY

W.P. No. 999 of 2006

Decided On: 06.06.2008

Appellants: Bhanumati Dayaram Mhatre
Vs.
Respondent: Life Insurance Corporation of India

Hon'ble Judges: S.B. Mhase and D.G. Karnik, JJ.

Case Note:
Insurance – Claim – Section 107 of Indian Evidence Act, 1872 (Act) – Petitioner’s son insured under Life Insurance Policy – Her son remained missing for seven years and even thereafter - Petitioner claimed payment of sum assured alongwith assured bonus under – Respondent denied claim and offered to pay only Rs.6670/- on ground that premium in respect of policy was not paid from year 1999 and policy lapsed consequently – Hence, present petition – Respondent contended that petitioner was liable to continue the policy till completion of 7 years from the date of missing - Further submitted that premium was paid up to 1999 only – Held, Under Section 107 of Act, if a person has not been heard of for a period of more than 7 years by the persons who would naturally have heard of him if he had been alive, then a presumption arises of his death – Contention raised by respondent rejected – Date of missing to be considered as date of death (1996) of petitioner’s son - Hence, respondent directed pay to petitioner entire sum as claimed by her – Directed to refund the premium paid by till 1999 as petitioner’s son presumed to be dead in year 1996 - Petition disposed of accordingly

D.G. Karnik, J.

1. The petitioner is an old lady aged more than 71 years of age. Her son Kushal had taken out a life insurance policy bearing No. 910278358 for a term of 25 years with a small assured sum of Rs. 10,000/-. The policy was to mature in February, 2014. Unfortunately, Kushal has been missing since 13th November, 1995 and has not been heard of since then. An intimation about Kushal's missing was served on the respondent - Life Insurance Corporation of India by the petitioner's husband vide his letter dated 8th August, 1996. By its reply dated 29th August, 1996, the respondent informed the petitioner's husband, who has since died, to take up the matter with the police and to continue to pay the insurance premium in respect of the policy to keep it alive. The respondent also informed the petitioner's husband that the claim under the policy can be settled only after expiry of 7 years from the date of Kushal's missing. The petitioner's husband accordingly continued to pay the premium till the year 1999. Thereafter the petitioner's husband died and the petitioner not being aware of the policy taken out by her son or the correspondence made by her husband, did not pay the further premiums. Subsequently, when the petitioner was searching old papers, she found the insurance policy taken out by her son and the correspondence made by her late husband whereupon she approached the respondent for payment of the sum assured together with assured bonus. By a letter dated 24th September, 2004, the respondent offered to pay to the petitioner a sum of Rs. 6,670/- only treating the policy as paid up as the premium was not paid from the year 1999. The respondent also informed the petitioner to obtain an order from the Court about the death of her missing son. The petitioner accordingly moved the Civil Judge, Junior Division by filing a declaratory suit bearing Regular Civil Suit No. 31 of 2003. The learned Civil Judge granted a declaration that the petitioner's son was dead. By this petition, the petitioner claims a mandamus or a direction to the respondent for payment of the full sum assured along with accrued bonus and other benefits on account of the death of her son and not merely the paid up value of the insurance policy.

2. It is not disputed that the petitioner's son is missing since 13th November, 1995. He has not been heard of for a period of more than 7 years. He is, therefore, presumed to be dead. The Court of Civil Judge, Junior Division has also passed a declaratory decree declaring him to be dead.

3. The respondent appears to have declined to pay the full sum assured with accrued bonus on the ground that the premium in respect of the policy was not paid from the year 1999. Obviously, the insurance premium would be required to be paid only till the date of the death. If, therefore, death of Kushal had occurred prior to the year 1999 when the payment of premium was defaulted, the respondent cannot deny the payment of the full sum assured together with accrued bonus and benefits, if any. Learned Counsel for the respondent submitted that Kushal would be presumed to have died at the end of the period of 7 years from the date he was missing or last heard of. As Kushal has been missing from 13th November, 1995, he would be presumed to have died only on or after 13th November, 2002. It must therefore be held that Kushal died on 13th November, 2002 when the period of 7 years expired. As the premium was not paid after the year 1999, the policy lapsed and, therefore, the respondent is not liable to pay the principal sum assured. In our view, the submission of the respondent's counsel that the death must be presumed to have occurred on 13th November, 2002, when the period of 7 years expired cannot be accepted for the reasons given below.

4. Sections 107 and 108 of the Indian Evidence Act, 1872 (for short "the Act") contain the provisions relating to the burden of proving death of a person and read as under:

107. 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."

108. Burden of proving that the 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.]

Section 107 says that when the question is whether a person is dead or alive and it is shown that he was alive within 30 years (immediately preceding the date when the question arises), the burden of proving that he is dead is on the party who contends that the person is dead. When any party to a proceeding asserts that a person is dead and it is shown that the person was alive within 30 years immediately preceding the date when the question is to be decided, the burden of proving that the person is dead is on the person who asserts the person to be dead. Section 108 of the Act is in the nature of exception to the rule contained in Section107 of the Act and states that when a person has not been heard of for 7 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 asserts that the person is alive. In other words, if a person has not been heard of for a period of more than 7 years by the persons who would naturally have heard of him if he had been alive, then a presumption arises of his death. Though Section 108 of the Act raises a presumption of death of a person if he has not been heard of for a period of 7 years by the persons who would naturally have heard of him, it raises no presumption as to the date of his death. The date of his death, if disputed, must be proved as any other fact.

5. Section 3 of the Evidence Act prescribes the standard of proof by defining the word "proved" as follows:

Proved - A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

If the test of preponderance of probability laid down by Section 3 of the Act is applied, that is to say a fact is said to be proved if the Court considers its existence to be so probable that a prudent man ought, under the circumstances of the particular case, to act upon certain supposition that it exists, then it would have to be held that Kushal has died on 13th November, 1995 or soon thereafter. If he was alive after 13th November, 1995, there was no reason for him not to contact his immediate family members. It is not the case that Kushal left the house in distress or he was under some disability which prevented him from returning home or even contacting his family members. Nor is it shown that Kushal was missing in such circumstances or could be at such place wherefrom he could not even contact his parents or close family members. Considering the fact that Kushal was not under any distress or disability nor was he in the situation wherefrom he could not contact his family members coupled with the fact that he has not contacted his family members at all since 13th November, 1995 and has been declared to be dead by the declaratory decree of the competent Court makes us, as men of ordinary prudence, believe that Kushal must have died on 13th November, 1995 or soon thereafter.

6. In view of the fact that Kushal had died in November, 1995, it was not necessary for him or his family members to pay the premium of his life insurance policy to keep it alive. The respondent was therefore not entitled to deny the claim for full payment of the sum assured on the ground that policy had lapsed in the year 1999. In our view, the respondent must pay to the petitioner not only the entire amount of sum assured together with accrued bonus with interest but also refund the premium paid from 1996 to 1999 with interest.

7. We accordingly direct the respondent to pay to the petitioner the entire sum assured of Rs. 10,000/- together with accrued bonuses and interest thereon at the rate of 12% per annum from 13th November, 1995 till payment and further refund the premium paid and recovered by the respondent from 1996 to 1999 together with interest thereon at the rate of 12% per annum from 1996 till payment. We also direct the respondent to pay the costs of this petition to the petitioner which we quantify at Rs. 5,000/-.

8. Rule is made absolute accordingly.

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