SENIOR BRANCH MANAGER, LIFE INSURANCE CORPORATION OF INDIA vs SAROJ SAXENA

BOTH these appeals arise out of judgment and order dated 28.4.1994 passed by District Consumer Forum, Allahabad in Complaint Case No. 1011 of 1993. Hence both these appeals are being taken up together for adjudication and are being disposed of by a common judgment and order.

THE facts of the case stated in brief are that the complainant''s son Neeraj Kumar was insured on 28.12.1984 for a sum of Rs. 10,000/- with the Life Insurance Corporation of India. THE first premium was paid in the year 1984 and thereafter the premiums were regularly paid. Her son was missing since 2.10.1985 and till 30.8.1993 no information was received about him. Under the law he shall be deemed to have died. THE complainant wrote a letter on 30.8.1993 to the Insurance Corporation for payment of the policy amount which was applied on 7.9.1993. It was informed by the Insurance Corporation that after 1985 no premium has been paid. Hence the policy has lapsed. THE receipt for payment of the premiums were also demanded. THE complainant lodged a report with the police on 3.10.1985 about the missing of his son. THE complainant has prayed that she may be paid sum of policy along with due amount, as well as Rs. 5,000/- as compensation for mental and physical torture, Rs. 23,000/- for taking legal advice and Rs. 2,000/- for interest. The opposite party in the written version has alleged that the complainant has not given any legal proof about the death of the insured Neeraj Kumar and, therefore, the complainant is not entitled to claim any amount on account of the policy. The Forum is not competent enough to decide the matter and the case should be filed before the Civil Court.

The parties led evidence in support of their respective contentions before the learned District Forum who after considering the case of the parties came to the conclusion that there was deficiency in service on behalf of the opposite party, Life Insurance Corporation of India, and hence it decreed the claim of the complainant with a direction for payment of the entire amount of the policy to be paid to the complainant with bonus and interest at the rate of 12% per annum and cost of Rs. 200/-.

AGGRIEVED against the order of the learned District Forum the complainant and the opposite party, Insurance Corporation, have come in appeals and have challenged the correctness of the order passed by the District Forum. We have heard the learned Counsels for the parties. Learned Counsel for the appellant Insurance Company, has argued that the appellant is not liable to pay any amount of the policy. The death of the insured, Neeraj Kumar, could not be proved by the complainant. It has further been argued that after 1985 no premium was paid by the insured and the policy has lapsed. According to learned Counsel no information was given in the year 1984 and only information given was on 3.8.1993. Learned Counsel for the appellant has argued that the death of insured Neeraj Kumar was presumed to have taken place seven years after the death of his disappearance.

THE only question involved in the present case is whether the Insurance Company is liable to pay the amount of the insurance policy. According to the learned Counsel for the opposite party LIC no claim is payable as the death of the complainant was not certified. According to the learned Counsel the death can only be presumed on the date when the dispute is brought to the Court. According to the learned Counsel the dispute was not before the Court, hence the death cannot be presumed. It has further been argued that the complainant has not paid the insurance premium till the death of the insured can be presumed under Section 108 of the Evidence Act. Section 108 of the Evidence Act provides for raising a presumption in the case of death of a person who has not been heard of for the last seven years by those who would naturally have heard of him if he had been alive. In the present case the allegations are that the insured has disappeared from the house and he could not be traced. Unless the death of the insured is certified or can be presumed, the Insurance Company is not liable to pay any amount to the nominee. In the present case the dispute has been brought before the District Forum by filing a complaint. At the most death can be presumed when the case was brought before the District Forum. In order to get the insured amount it is necessary that the policy should have run for the full period upto when the death of the insured has taken place or presumed. In the present case, the death can be presumed when the case was filed before the learned District Forum. In this connection, the learned Counsel for the LIC/appellant has placed reliance on the case of Smt. Narbada & Anr. v. Ram Dayal, AIR 1968 Rajasthan 48 V 55 C14. In this case the question which arose for consideration was about the interpretation of Section 108 of Evidence Act. The Hon''ble Court after consideration of various cases cited before it came to the conclusion that there can be no presumption of death of a person who has not been heard of for 7 years that he died within that period or at the close of that period. The presumption that such a person is dead would be the same if the period exceeds by seven years. it has also been held in those cases that such a person, in the absence of the proof of the exact date about the death, the death shall be deemed that he is not alive on the day when the dispute arose about the death of the man and it has been brought for adjudication to the Court of law. Thus in view of the case law cited above, it is clear that the death of the insured can be deemed on the date when the dispute was brought before the District Forum and not before that at any point of time unless specifically proved by the complainant.

IT is an admitted fact that the premium of the insurance policy was not paid upto the date when this complaint was filed before the District Forum. The premium was discontinued the day when the insured had reportedly disappeared, therefore, the policy lapsed for non-payment of the premium amount and it was not in operation when the death of the insured is to be presumed. Therefore, in view of the facts of the case, the complainant is not entitled to get any amount as nominee of the policy which was taken by the insured.

THE learned District Forum was, therefore, not justified in allowing the claim of the complainant as there was no deficiency on behalf of the Life Insurance Corporation. THE appeal No. 1457/SC/1994 is, therefore, liable to be allowed. In the appeal No. 1469/SC/1994 filed by Smt. Saroj Saxena it has been claimed that the total amount of Rs. 25,000/- should have been decreed while only a sum of Rs. 10,000/- has been decreed. In the earlier part of the judgment we have come to the conclusion that the complaint is liable to be dismissed. THErefore, this appeal is also liable to be dismissed. ORDER Appeal No. 1457/SC/1994 is allowed and the judgment and order of the learned District Forum are set aside and the complaint is dismissed. Appeal No. 1469/SC/1994 is dismissed and the judgment and order of the learned District Forum are set aside and complaint is dismissed. THEre will be no order as to the costs. THE original judgment and order shall be kept in the original file of Appeal No. 1457/SC/1994 and a certified copy thereof shall be kept in the records of Appeal No. 1469/SC/1994 which shall also be governed by this judgment. Let copy as per rules be made available to the parties. Ordered accordingly.