The presumption of death under Section 108 of the Evidence Act arises when a person has not been heard of for seven years by those who would naturally have heard of him if he were alive. However, there is no presumption as to the time of death during the seven-year period. The onus of proving the death on any particular date rests with the person claiming the right to the establishment of which fact is essential.

1. As to what would be the date of death when a person is not heard of for 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.

2. 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 8-2-1986. 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.

3. Further fact is that on 29.6.1996, the respondent approached the appellant-Insurance 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 respondent-wife 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.

4. As the claim was denied the respondent-wife 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 respondent-wife 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.

5. The short question which arisen in this case is as to whether respondent-claimant 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.

6. 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.

7. 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:

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 th