JUDGMENT JUDGMENT: (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 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

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