IMPORTANT POINT
The presumption raised under Section 108, Evidence Act is a limited presumption confined only to presuming the factum of death of person who s life or death was in issue but there is no presumption as to the date or time of death.

Headnote:Evidence Act, 1872-Sections 107 and 108-Only inference permissible on the presumption is that the man was dead at the time when question arose subject to a period of 7 years absence and being unheard of having elapsed-Onus of proving that death had taken place at any given point of time or date since the disappearance or within the period of 7 years would lie on person who stated the claim-Life insurance policy by husband of respondent was taken in 1986 and then insured was alleged not heard and seen since July 1988-Claim lodged with appellant insurance Corporation in 1996 was repudiated on ground that for non-payment of premium policy lapsed-L.I.C. was justified in turning down claim by plea that policies had lapsed.
       Held : The law as to presumption of death remains the same whether in Common Law of England or in the statutory provisions contained in Sections 107 and 108 of the Indian Evidence Act 1872. In the scheme of Evidence Act, though Sections 107 and 108 are drafted as two Sections, in effect, Section 108 is an exception to the rule enacted in Section 107. The human life shown to be in existence, at a given point of time which according to Section 107 ought to be a point within 30 years calculated backwards from the date when the question arises, is presumed to continue to be living. The rule is subject to a proviso or exception as contained in Section 108. If the persons, who would have naturally and in the ordinary course of human affairs heard of the person in question, have not so heard of him for seven years, the presumption raised under Section 107 ceases to operate. Section 107 has the effect of shifting the burden of proving that the person is dead on him who affirms the fact. Section 108, subject to its applicability being attracted, has the effect of shifting the burden of proof back on the one who asserts the fact of that person being alive. The presumption raised under Section 108 is a limited presumption confined only to presuming the factum of death of the person who s life or death is in issue. Though it will be presumed that the person is dead but there is no presumption as to the date or time of death. There is no presumption as to the facts and circumstances under which the person may have died. The presumption as to death by reference to Section 108 would arise only on lapse of seven years and would not by applying any logic or reasoning be permitted to be raised on expiry of 6 years and 364 days or at any time short of it. An occasion for raising the presumption would arise only when the question is raised in a Court, Tribunal or before an authority who is called upon to decide as to whether a person is alive or dead. So long as the dispute is not raised before any forum and in any legal proceedings the occasion for raising the presumption does not arise. (Para 14)
       We cannot, therefore, countenance the view taken by the High Court in either of the two appeals that on the expiry of seven years by the time the issue came to be raised in Consumer Forum or Civil Court and evidence was adduced that the person was not heard of for a period of seven years by the wife and/or family members of the person then not only the death could be presumed but it could also be assumed that the presumed death had synchronized with the date when he was reported to be missing or that the date and time of death could be correlated to the point of time coinciding with the commencement of calculation of seven years backwards from the date of initiation of legal proceedings. In order to successfully maintain the claim for benefit under the insurance policies it is necessary for the policy to have been kept alive by punctual payment of premiums until the claim was made. The appellant-LIC was justified in turning down the claims by pleading that the policies had lapsed and all that could be paid to the claimants was the paid-up value of the policies. (Para 16)

JUDGMENT

R.C. Lahoti, J.-Leave granted in SLP (C) No. 9334 of 2000.

2. A common question of law centering around Sections 107 and 108 of Indian Evidence Act, 1872 arises for decision in these two appeals.

3. In Civil Appeal No.2655 of 1999 Sham Prakash Sharma, the late husband of Mrs. Anuradha, the respondent, had taken a life insurance policy from the appellant - Life Insurance Corporation of India (hereinafter, the LIC or Corporation, for short). The policy commenced with effect from 8.2.1986. The premium was payable every six months. For two years, the premium was paid. On 17.7.1988 Sham Prakash Sharma was at Bombay wherefrom he just disappeared, never to be traced out thereafter. The respondent, Anuradha, lodged a first information report with the police. On 11th July, 1988, the LIC had sent a communication addressed to Sham Prakash Sharma and delivered at his residence informing that the insurance policy had lapsed for non-payment of premium. On 29.6.1996, the respondent approached the LIC for release of benefits under the policy proceeding on an assumption that Sham Prakash was dead as having not been heard of for a period of more than seven years. The LIC turned down the claim of the respondent relying on Rule 14 of the Insurance Manual which reads as under :

"Where a person is reported missing, it is to be advised to the claimant that Life insured will be presumed to be dead after seven years or production of the decree from the court of law and in the meantime policy is to be kept in force by making payment of premium regularly."

4. The respondent approached the State Commission constituted under the Jammu & Kashmir Consumer Protection Act, 1987 complaining of deficiency in service on the part of the appellant. The LIC defended itself mainly by submitting that as the policy was not kept alive, the claim was not maintainable. The State Commission upheld the respondent s claim forming an opinion that Rule 14 relied on by the appellant was of no relevance in view of the statutory presumption arising under Section 108 of the Evidence Act. The appellant preferred an appeal in the High Court which has been dismissed. During the course of its judgment the High Court has, by referring to Sections 107 and 108 abovesaid, and also taking into consideration a few decided cases (none of this Court), formed an opinion that there was no presumption as to the time of death and inasmuch as the LIC failed to show that Sham Prakash was alive when the claim was preferred the benefits payable under the policy were liable to be released to the respondent.

5. In the appeal arising out of SLP (C) No. 9334 of 2000, two insurance covers of Rs. 50,000/- each were taken on the life of one Dev Raj Sharma (whose heirs the respondents in that appeal are) who was employed under the Punjab government as Junior Engineer. On a day in the month of November 1988 he did not return to his home from the office. The first information report of his disappearance was lodged with the police. The premiums were regularly paid upto the time of disappearance of Dev Raj Sharma whereafter the premiums were not paid. On 20.9.1997 the respondent filed a civil suit against the LIC claiming release of benefits under the policy on the ground that the insured should be presumed to have died on the date of his disappearance, and therefore, the claim had become payable on the date of disappearance itself though the presumption as to death became available to be raised after the expiry of period of seven years from the date of disappearance, and therefore, the question of policies having lapsed for non-payment of premium after the date of disappearance would not arise as the assured was dead.

6. Shri G.L. Sanghi, the learned senior counsel for the appellant-Corporation in both the appeals stated at the very outset and under instructions that the appellant-Corporation does not have any objection to the amounts of the insurance policies in both the cases being released to the respo

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2004 Supreme(SC) 396

IMPORTANT POINTThe presumption raised under Section 108, Evidence Act is a limited presumption confined only to presuming the factum of death of person who s life or death was in issue but there is no presumption as to the date or time of death.

Cases Referred (3)

IMPORTANT POINT
The presumption raised under Section 108, Evidence Act is a limited presumption confined only to presuming the factum of death of person who s life or death was in issue but there is no presumption as to the date or time of death.