BRANCH MANAGER, L.I.C. vs SAVITRI DEVI

THIS is an appeal against the judgment and order dated 28.9.1992 passed by District Consumer Forum, Faizabad in Complaint Case No. 328 of 1992.

THE facts of the case stated in brief are that the complainant's husband Shiv Shankar Lal was a driver of a jeep. He got himself insured on 26.12.1981 with Life Insurance Corporation of India and a policy was issued to him. On 22.1.1982 her husband was kidnapped by certain people alongwith Jeep No. UPX 7561. Information of this kidnapping was given to all concerned parties including the Insurance Corporation and the news was also published in the newspapers. By letter dated 5.8.1982 the Insurance Corporation replied that when Shivshankar Lal returns back the information be given to the Insurance Corporation. On 1.5.1987 information was given to the Senior Branch Manager of Faizabad and to the Branch Manager, Akbarpur of Life Insurance Corporation that Shiv Shankar Lal has not come back so far. The complainant was told that for such cases the claim can only be settled after a lapse of 7 years. Thereafter the complainant moved an application on 6.2.1989 that the period of 7 years has now been completed and hence the claim may be processed. Life Insurance Corporation informed the complainant to contact Life Insurance Corporation of India at Akbarpur branch office. It was also informed to her that the policy is lying lapsed from 26.6.1982 on account of non-payment of premium. Hence no amount is payable to her. The complainant wrote three registered letters to the opposite party-Insurance Corporation but with no effect. It is alleged that the insurance was for a sum of Rs. 10,000/-.

The Insurance Corporation in its written version admitted the insurance but denied other allegations. It alleged that the complaint is barred by limitation. It further alleged that previously Complaint No. 328/1992 was filed by the complainant on the same facts which is also fixed for today. Hence the present Complaint Case No. 402/1992 is not maintainable. It has further been alleged that a declaration should have been obtained by the complainant from a competent Court. It further alleged that as no premium was subsequently paid, hence the policy was lapsed and no amount is payable under that policy.

THE learned District Forum, after considering the various pleas of the parties, came to the conclusion that the Life Insurance Corporation is liable to pay a sum of Rs. 10,000/- which should be paid within 15 days. Aggrieved against this order of the learned District Forum, the Life Insurance Corporation has come in appeal and has challenged the correctness of the order passed by the Forum.

WE have heard the learned Counsel for both the parties. Learned Counsel for the appellant has argued that the presumption of death of a person can only be invoked after lapse of seven years under the provisions of the Evidence Act. No doubt it is true that when a person is reported to be missing and the persons who should have ordinarily heard about him have not heard about him for a period of seven years, then it will be presumed that the person is dead. This is provided under Section 107/108 of the Indian Evidence Act. No doubt it is true that the presumption can be drawn after a lapse of only 7 years, but the contention of the appellant that a declaration should be sought by the complainant from a competent Court cannot be accepted. Evidence Act does not require that in such a contingency a declaration has to be sought about the death of the person concerned. Under the provisions of the Evidence Act the death is presumed after the lapse of seven years if the whereabouts of that person is not known or it is not proved that the person had died within the period. When the law provides a presumption to be drawn, then no declaration is necessary from a competent Court. Therefore, it will be presumed that Shiv Shanker Lal died on 22.1.1982 which presumption shall be drawn only after the lapse of 7 years. The next argument of learned Counsel for the appellant is that a previous Complaint Case No. 328/1992 had been filed by the same complainant before the same District Forum which was also listed for hearing on 22.9.1992. In view of the pendency of that complaint, the second Complaint No. 402/1992 could not have been filed by the complainant. No doubt it is true that the two complaints which are for the same cause of action cannot be filed and cannot continue together. According to the learned Counsel this complaint should have been dismissed as barred by res-judicata. A perusal of the judgment of the learned District Forum goes to show that Complaint Case No. 328/1992 was not pressed by the complainant and hence it was dismissed. On this ground the learned District Forum came to the conclusion that the second complaint is not barred on the ground of res-judicata as the complainant had elected that the second complaint should continue.

THE next contention of the learned Counsel for the appellant is that the present complaint is barred on account of limitation. According to learned Counsel for the appellant the presumption about the death has to be drawn on 22.1.1989 just after the expiry of 7 years from the date of kidnapping. According to learned Counsel the complaint should have been filed within a period of three years. When the presumption about the death has to be drawn on 22.1.1989, then the complaint should filed by 22.1.1992. THE Complaint No. 402/1992 was filed by the complainant in June, 1992. THE date of filing of the complaint is not given in the copy of the complaint but only the month and year are given. Even according to this date, the second complaint was not filed within a period of three years from the date of presumption of death. THE time of three years for filing the complaint before the amendment of Consumer Protection Act cannot be enlarged at this stage. Recently the Hon'ble Supreme Court in the case of Corporation Bank & Ors. v. Narain J. Shah, I (2000) CPJ 13 (SC)=II (2000) SLT 140=2000 CTJ p. 81, has held that under Section 24A, the period of limitation provided for filing a suit before the amendment of Act in 1993 was only three years. Previous to that the period of limitation was not provided under the Consumer Protection Act. Thus in view of the recent pronouncement of the Hon'ble Supreme Court, the present complaint is barred by limitation.

THUS in view of the above discussion the appeal is liable to be allowed and the complaint is to be dismissed as barred by limitation. Order The appeal is allowed and the complaint is dismissed. The judgment and order of the learned District Forum are set aside.

Let copy of order as per rules be made available to the parties. Appeal allowed.