Monday, September 22, 2014

HC: Presumption of death not enough to claim insurance amount

Presumption of death not enough to claim insurance amount: HC

MADURAI, September 22, 2014

MOHAMED IMRANULLAH S.

Date of death should also be proved by means of evidence: judge

An individual who had not been heard of for seven consecutive years can be declared dead as per law.

But that may not be sufficient to claim life insurance amount in case of a dispute over the expiry of policy period and so the date of death should also be fixed by letting in evidence before a court of law, the Madras High Court Bench here has held.

Justice S. Nagamuthu made the observation while dismissing a writ petition filed by Kodiammal alias A. Meenatchi of Theni district in 2009.

The petitioner had sought for a direction to Life Insurance Corporation (LIC) to disburse an insured amount of Rs.65,000 following the sudden disappearance of her husband since 1999 — more than two years after he took the insurance policy.

According to the petitioner, her husband Andisamy had taken the policy on May 15, 1996, and went missing since January 2, 1999, the day when he was last seen alive. Thereafter, he had reportedly not established any contact with his family members, relatives, friends, colleagues and other acquaintances. Efforts taken by the petitioner to trace him out also turned futile.

Hence, she filed a civil suit before the District Munsif Court in Theni in 2007 and sought for a declaration that her husband was dead. The Collector, Superintendent of Police and the Managing Director of Tamil Nadu State Transport Corporation, where her husband was working before his disappearance, were included as defendants in the suit.

During trial, all the three defendants remained ex-parte and the District Munsif, by a decree passed on November 29, 2007, declared Mr. Andisamy dead.

Armed with the decree, the petitioner laid a claim before the LIC for payment of the insurance amount along with interest. But the amount was not paid. Hence, the present writ petition.

Contesting the case before the High Court, the counsel for LIC claimed that the policy taken by the petitioner’s husband had lapsed on December 15, 1998 — much before his reported disappearance — for non-payment of premium amount and hence she was not eligible for any amount. However, the petitioner’s counsel disputed the claim.

Stating that such disputed questions could not be resolved through a writ petition, the judge said: “The presumption, under Section 108 of the Indian Evidence Act, is only limited to the extent of presuming the death (if a person was not heard of seven long years) and not the date of death. The date of death is a matter to be proved by means of evidence.”


Also read the FULL Text of Judgment at: http://judis.nic.in


BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 16.09.2014

CORAM: THE HONOURABLE MR.JUSTICE S.NAGAMUTHU

W.P.(MD)No.13915 of 2009

Kodiamal @ Meenatchi ... Petitioner

Vs.

The Branch Manager, Life Insurance Corporation of India, Branch Office-II, Loyola Building, 2nd Floor, Dindigul-1.... Respondent

Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Mandamus directing the respondent to disburse the assured sum of Rs.65,000/- with interest in respect of Policy No.740654011 dated 15.05.1996  by accepting the decree and judgment passed by the District Munsif Court, Theni in O.S.No.135 of 2007 dated 29.11.2007.

For Petitioner : Mr.T.Lenin Kumar
For Respondent : Mr.S.Karthik for M/s.Profexs Associates

ORDER

1. The petitioner's husband Mr.M.Andisamy was lastly seen alive on 02.01.1999, according to the petitioner. She was not thereafter heard of. Therefore, according to the petitioner, as per Section 108 of the Indian Evidence Act, it should be presumed that he died. Seeking a declaration that Mr.Andisamy is dead, the petitioner filed a suit in O.S.No.135 of 2007 before the learned District Munsif, Theni. The District Collector, Theni District, the District Superintendent of Police, Theni District and the Managing Director of Tamil Nadu State Transport Corporation, are the defendants in the suit. All the three remained ex-parte. The learned District Munsif, by a decree and judgment dated 29.11.2007 declared that Mr.Andisamy is dead.

2. When Mr.Andisamy was alive, he had taken an Insurance Policy in Policy No.740654011 dated 15.05.1996. Based on the decree of the Civil Court in O.S.No.135 of 2007 the petitioner made a claim for insurance policy amount from the respondent. That was not paid. Therefore, the petitioner is before this Court with this writ petition seeking a mandamus to the respondent, as above.

3. In the counter filed by the respondent, it is stated that the policy taken by the husband of the petitioner lapsed on 15.12.1998 for non-payment of the premium amount. Therefore, on or after 15.12.1998 since the policy was not in force, the respondent is not liable to pay the insurance amount to the petitioner.

4. I have heard the learned counsel on either side and perused the records carefully.

5. It is true that the petitioner's husband Mr.Andisamy has not been seen alive for several years. Based on the presumption under Section 108 of the Indian Evidence Act, the Civil Court has also declared that Mr.Andisamy is dead. But the dispute is with regard to the date of death. The Hon'ble Supreme Court in L.I.C. of India v. Anuradha, reported in AIR 2004 SUPREME COURT 2070, has held that presumption under Section 108 of the Indian Evidence Act is only limited to the extent of presuming the death and not the date of death. The date of death is a matter to be proved by means of evidence. Here in this case, though it is stated that Mr.Andisamy was not seen alive from 02.01.1999, it cannot be readily inferred or presumed that the date of death is 02.01.1999. The date of death is to be proved by means of evidence before the competent forum. In the case on hand, the policy expired on 15.12.1998. Mr.Andisamy was found alive till 02.01.1999 and therefore, any date subsequent to 02.01.1999 Mr.Andisamy would have died. Even if the date of death is proved, since the policy was not alive, the respondent is not liable to pay any amount. In this regard, the learned counsel for the petitioner relies on the above judgment of the Hon'ble Supreme Court, wherein the Hon'ble Supreme Court has held that in order to successfully maintain the claim for benefit under the insurance policies it is necessary for the policy to have been kept alive by punctual payment of premiums until the claim was made. The appellant-LIC was justified in turning down the claims by pleading that the policies had lapsed and all that could be paid to the claimants was the paid-up value of the policies?

6. But the learned counsel for the petitioner would submit that since Mr.Andisamy was not available from 02.01.1999, the question of paying the insurance premium after 02.01.1999 was out of question. However, he would submit that there were 15 days grace period from 15.12.1998 to pay the premium. But this is disputed by the learned counsel for the respondent who would state that the due date was 01.12.1998 and the grace period expired on 15.12.1998.

7. In my considered opinion, these are all disputed questions of fact and the same cannot be gone into in this writ petition. If the petitioner is so advised, she can work out her remedy elsewhere before the competent forum, such as Consumer Redressal Forum. I only say that in this writ petition, the relief sought for cannot be granted, since there are lot of disputed questions of fact, however with liberty as indicated above.

8. With the above observations, the writ petition is dismissed. No costs.

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