Section 108 of Indian Evidence Act, 1872 – what the courts said

Let me share a Supreme Court judgment with respect to a death claim which I found very interesting and informative.

You would agree that death is one of the stark realities of life. It is the ultimate truth. Everything in life is uncertain after birth; death is an exception and is certain to happen in one’s life.

But there may be situations where the exact time and manner of death of a person cannot be ascertained or known. Say for example, a person suddenly disappears and his whereabouts are not known thereafter, despite reasonable efforts of his near and dear relatives or people who ought to have known about his existence in the normal course had he been alive.

In such a situation, the question arises as to when the nominees of the missing insured can lay a claim to the benefits of the policies and what their obligations are. Are they bound to continue to pay premium? If so how long are they bound to make payment, and when does the law presume the death of such an insured?

These were the points adjudicated and decided by Supreme Court in the recent case of LIC of India v/s Anuradha. In order to appreciate the facts it is necessary to analyze and understand section 108 of Indian Evidence Act, 1872, which reads as under:

BURDEN OF PROVING THAT THE PERSON IS ALIVE WHO HAS NOT BEEN HEARD FOR SEVEN YEARS. Provided that the question is whether a man is alive or dead and is proved that he is not been heard of for seven years, the burden of proving that he is alive is shifted to the person who affirms it.

Section 108 lays down a general rule as to presumption of existence of a person. This is regard to ONLY death of the person, that too after the lapse of seven years and if time lapsed is only six years and 364 days, the presumption cannot be applied. More importantly, this presumption is not available as to the time of death of the subject person. This fact has to be proved by direct or circumstantial evidence.

In another words only can the death be presumed. It cannot be “assumed that presumed death had synchronized with the date he was reported missing” or that the date and time of death can be correlated to the point of time coinciding the commencement of calculation of seven years backwards from the date of initiation of legal proceeding.

Having understood the presumption of death, let us now revert to the facts of the aforementioned case – One Mr. Sham Prakash Sharma, the late husband of Mrs. Anuradha (Respondent before Supreme Court) had taken a Life Insurance policy (the Petitioner before Supreme Court). The policy was commenced with effect from February 8, 1986. The premium was payable every six months and was paid for two years. The respondent’s husband suddenly disappeared from Bombay on July 17, 1988 and thereafter he was not traceable and his whereabouts were not known. The respondent logged a First Information Report (FIR) with the Police. On July 11, 1988 LIC sent a communication address to Mr. Sham Prakash Sharma, delivered at his residence, informing that the Insurance Policy had lapsed for non-payment of premium. On June 29, 1996, the respondent approached the LIC for release of benefits under the policy proceeding on an assumption that Mr. Sham Prakash was dead as he had not been seen and heard for seven years. The LIC turned down the claim of the respondent relying on Rule 14 of Insurance Manual which reads as under:

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

The respondent, aggrieved by rejection approached the State Consumer Disputes Redressal Commission complaining of deficiency of service on the part of Petitioner. The Petitioner, namely LIC, refuted the contention of deficiency and contended that the policy had lapsed, since it was not kept alive, and the claim was not maintainable. The State Commission accepted to the Respondents claim and held that the Rule 14 relied on by the Petitioner had no relevance in view of statutory presumption arising under Section 108 of the evidence Act. The Petitioner namely, LIC, preferred an appeal before the High Court and which was also dismissed.

The Petitioner, LIC, filed an appeal before the Supreme Court against the judgment of High Court and during the course of hearing an appeal, it was submitted for the council of LIC that in case it had no objection to the release of payment due under the policy to the Respondent as ex-gratia payment to honor the judgment of High Court and it was only interested to settle the law in this area.

The Supreme Court held that both High Court and the Commission held wrong in holding that after the lapse of seven years, when the matter came before the court, not only death can be presumed but also time of death could be assumed, which would be the time when the fact of missing was first noticed, the Supreme Court held under Section 108, only death can be presumed and not the time of death. This fact has to be proved by the direct or circumstantial evidence, it further held that High Court and Commission went wrong in holding “that on expiry of seven years by the time issue raised in Consumer Forum or Civil Court, an evidence was addressed that the person was not heard of for a period of seven years by wife and/or family members of the person then only the death can be presumed but it could also be assumed that the presumed death had synchronized with the date when he was reported missing, or date and time could be correlated to the point of time coinciding with the commencement of calculation of seven years from the backward of initiation of legal proceedings.

The Supreme Court further held that in order to successful maintain the claim for the benefit under the insurance policy, it is necessary for the policy to kept alive by punctual payment of premium under the claim was made. The Apex court also held that the Petitioner namely, LIC, was justified in turning down the claims by pleading that the policy had lapsed and the all that could be paid to the Claimants was the paid up value of the policy.

If I have not confused you, the inferences of the whole story are:

1. After the lapse of seven years, ONLY and only death could be presumed by the court.
2. There is no presumption of the time of death under Section 108 of Indian Evidence Act, 1872.
3. Time of death has to be proved by independent evidence.
4. The Claimant in order to successfully maintain the claim in such cases, has to continue to pay premium till the claim is made, failure to payment of premium shall lead to lapse of policy and disentitle the nominee or the Claimant to pay the entire amount payable under the policy.

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47 Responses to “Section 108 of Indian Evidence Act, 1872 – what the courts said”

  1. Deepak Jeswal Says:

    Great piece 🙂 Thanks for sharing the info.

    But what if the person returns after seven years, and when the claim has already been paid?

    (Or does that happen in movies only:P)

  2. Kislay Says:

    Deepak: I wish I could ask the judges in such a case.

  3. bishnu swaroop Says:

    excellent piece of writing, really mindboggling, exceptionally good .

  4. Kislay Says:

    Thanks

  5. Subramanian L Says:

    Excellent stuff. Way to go !!!

    The inferences in the end really helped 🙂

    Subramanian
    Mumbai

  6. Kislay Says:

    Subramanian: Thanks for visiting my blog and thanks for the comments too.

  7. rohit dangare Says:

    nice article……. i appreciate the same as i am a lawyer.

  8. Kislay Says:

    Rohit: Thanks

  9. rupesh shah Says:

    thanks as i am in insurance field this will be very helpful to me.
    if u have more such case studies regarding insurance please share.
    i will be greatful to u.
    thanks once again
    keep in touch
    rupesh shah

  10. Kislay Says:

    Rupesh: Nice to see you here.

  11. rupesh shah Says:

    u have more such case studies regarding insurance please share.
    also the new mwdiclaim policy2007degined by new india assurance co is been enforced for old cleints . do u have any knowldge about this.

  12. Kislay Says:

    Rupesh: Sure I’ll share more such ideas through this blog. I am tied up heavily due to shifting to a new city. I have no idea about the Mediclaim policy which you are talking about but still I’ll find it out.

  13. rupesh shah Says:

    congrats, new land gives new opportunities as well as more experience in interactinig with people. its ok take ur time.
    thanks for responding
    with regards
    rupesh shah

  14. Kislay Says:

    Rupesh: Thanks

  15. priyanka sharma Says:

    excellent judgement,removes all doubts regarding diff between death and time of death.being a student we people usually get confused between both.

  16. Kislay Says:

    Thanks Priyanka

  17. sudarshan Says:

    can you give me the citation

  18. alok kumar ranjan Says:

    interesting observation of supreme court as well as yours thank s for information

  19. Raju Arora Advocate Says:

    This is nice and perfect order pronounced by Hon;ble Supreme Court. your collection must be published in all leading news papers thus people should aware about our duties and rights.
    From Ludhiana (Pb.).

  20. Nitin Jain Says:

    Thanks for sharing with us…but i want to knw also that if after2-3 years his (missing Person) family is not able to pay premium ..then is their any other procedure to claim premium after 7 years..???????

    1 more -if after missing his(missing Person) family has paid balance premium for 2 years…so now whether they have to wait for balance 5 years….n after total of 7 years …how can they claim the amount..????(whether they have to show the proof of missing person/fir)………hw can they apply for claim of premium…….????

    Please rply for this …i will be very greatful to u..
    Thanks
    Nitin Jain

  21. RAJESH KUKRETI Says:

    what happened when the nomnee of the ppolicy is not able to continue the policy till 7 yrar of the fir

  22. rajanikanth.g Says:

    hello sir
    my was missing from last seven years he was a govt employee now i have applied for compassionate appointment concrned diportment but thay have rejected my my aplication what is my proceding right now please give sugation

  23. rajanikanth.g Says:

    hello sir,
    my fother was missing from last seven years he was a govt employee now i have applied for compassionate appointment concrned deportment but thay have rejected my my aplication what is my proceding right now please give sugation

  24. maya Says:

    sir,
    my father was missing from last seven years he was a govt employee now i have applied for ex gratia compensation concrned deportment but thay have rejected my aplication what is my proceding right . my family appliable to ex gratia compensation.

    • rahul pahurkar Says:

      had you lodged missing complaint to th police station ?
      and after 7 yrs. from missing you have to file application in th court for heirship certificate………….

  25. Ashish Das Says:

    Informative

    • rahul pahurkar Says:

      had you lodged missing complaint to th police station ?
      and after 7 yrs. from missing you have to file application in th court for heirship certificate………….

  26. Akhilesh666 Says:

    Nice piece of informative Article Sir explained with Leading Cases. Thanks for your efforts for Student like me. But i would want to know one more thing that, Is there any legal particular term used In Indian Evidence Act for Legal death?

  27. Nitin jain Says:

    Can any 1 help me as i asked the question earlier..?

  28. sumitra kshirsagar Says:

    good article sir,can you please give me some information about missing persons pension?my father is missing since 2005,he was getting state pension,now as it has been 7 years,who will be the successor of the saturated pension as my mother died in 1994.can you please give me any guideline thanx in advance

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  30. Kraig Says:

    I pay a quick visit daily a few web sites and websites to read
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  31. soumik sur Says:

    great and helpful article

  32. rajan Says:

    Is it necessary to make the state as an opposite party ??

  33. CHIRAG Says:

    Thanks for sharing with us…but i want to knw also that if after2-3 years his (missing Person) family is not able to pay premium ..then is their any other procedure to claim premium after 7 years..???????

    1 more -if after missing his(missing Person) family has paid balance premium for 2 years…so now whether they have to wait for balance 5 years….n after total of 7 years …how can they claim the amount..????(whether they have to show the proof of missing person/fir)………hw can they apply for claim of premium…….????

    Please rply for this …i will be very greatful to u..
    Thanks
    CHIRAG

    • pkdutta Says:

      As per LIC norms, the missing information should be reported first with local thana missing diary, then for 7 years the premium will be paid. However, the guidance should be obtained from LIC for what to do in such case.

      • CHIRAG Says:

        Thanks for reply….

        In case the date of missing person and due date of LIC premium is same. Then the Seven year is completed from date of missing and the seven premium is also due. In these case, seventh LIC premium payment is required or not and what payment is recevied from LIC company?????

  34. Jk mishra Says:

    In a recent helicopter crash in the Arabian Sea 80 NM west of Mumbai one pilots dead body has been found 200ft under wate along with the helicopter wreckage. However the other pilots body could not be recovered and is missing since 8 days and there are no signs of him being alive but his car keys ,mobile handset and wrist watch has been found.
    How can we process claim of this pilot who is missing after the crash based on the evidence of one pilots body found,wreckage, and personal belongings found near the wreckage.
    Thanks

  35. Aman Says:

    with regards,

    I want to know in the case for claiming family pension for defence persons.
    In indian army widow/divorced daughters can claim family pension. If a dependent daughter whose husband went missing and after 7 years declared “Presumed to be dead” by Hon’ble Court, she cannot claim family pension as widow dependent daughter because reply is given by pension authority there is no such kind of provision to allow her family pension.
    May it means that lady did not lost her husband or not dependent on her father.

    What kind of rules in INDIA, even after getting Court’s decree for “Presumed to be Dead” her wife cannot claim dependency on her father.

  36. sanjay kumar Says:

    hello sir,
    my father was missing from last seven
    years.
    He was a govt employee now i have
    applied for compassionate appointment
    concrned deportment but thay have
    rejected my my aplication what is my
    proceding right now please give sugation….

    • pkdutta Says:

      From local court you should apply for death certificate. I think after this, you can apply

      • hina Says:

        hello sir my dad is mising since last 7 years and he was a business man , how should i apply for his death certificate?
        can u help me by talking to me on the phone 9810409376

      • PK Dutta Says:

        Did you file a missing information in local police station? If so with this missing diary., after 7 years you can make an application to local court for death certificate.

  37. tejinder singh bahngu Says:

    i feel date of death should be date of missing, though declared after 7 years .in indian culture where generally man is a bread earner how wife can continue to pay LIC premium when she is in dark about how to run her house. any latest clarification, pl let me know.

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