Gracey Augustine and Libin Augustine v. Life Insurance Corporation of India

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR** **MONDAY, THE 8TH DAY OF OCTOBER 2012/16TH ASWINA 1934** **WP(C).No. 19824 of 2012 (C) ---------------------------** **PETITIONER(S):** **-------------** **1. GRACEY AUGUSTINE, AGED 55 YEARS, W/O.K.T.AUGUSTINE, XIV/1001A, KIZHAKKETHOUDAYIL, NAZARETH, KOCHI-682 002.** **2. LIBIN AUGUSTINE, AGED 28, S/O.K.T.AUGUSTINE, -DO- -DO-** **BY ADVS.SRI.N.SUGATHAN SMT.VARSHA BHASKAR** **RESPONDENT(S):** **--------------** **1. LIFE INSURANCE CORPORATION OF INDIA, 2NS FLOOR, NEW INDIA BUILDING, S.V.ROAD, SANTACRUZ (W) MUMBAI, MAHARASHTRA -400 054.** **2. THE DIVISIONAL MANAGER, LIFE INSURANCE CORPORATION OF INDIA, DIVISIONAL OFFICE, M.G. ROAD, ERNAKULAM -682 016.** **3. THE MANAGER, BRANCH OFFICE, L.I.C. OF INDIA, P.B.815, EDATHIL BUILDING, THOPPUMPADY, KOCHI-682 005.** **R1 TO R3 BY ADV. SRI.S.EASWARAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08-10-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DG** ## **WP(C).No. 19824 of 2012 (C)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF F.I.R FILED BY THE S.I.OF POLICE, THOPPUMPADY ON 26.07.2003 BEFORE THE JFMC-II, KOCHI. EXT.P2: COPY OF NEWS ITEM PUBLISHED IN MALAYALA MANORAMA DAILY DATED 30.07.2007. EXT.P3: COPY OF FINAL REPORT IN CRIME NO.160/2003 FILED BY S.I.OF POLICE, THOPPUMPADY BEFORE JFMC-II, KOCHI. EXT.P4: COPY OF LETTER DATED 15.04.2004 OF THE 1ST PETITIONER TO 3RD RESPONDENT. EXT.P5: COPY OF REPRESENTATION DATED 24.09.2010 SUBMITTED BY THE PETITIONER BEFORE 3RD RESPONDENT. EXT.P6: COPY OF LETTER DATED 04.10.2010 OF THE 3RD RESPONDENT TO 1ST PETITIONER. EXT.P7: COPY OF ORDER NO.21/2011 DATED 22.03.2011 OF TALUK LEGAL SERVICES COMMITTEE, KOCHI. EXT.P8: COPY OF RECEIPT DATED 02.06.2012 ISSUED BY THE 3RD RESPONDENT. EXT.P9: COPY OF CERTIFICATE DATED 24.10.2011 ISSUED BY FR.GEORGE EDEZHATH, HOLY FAMILY CHURCH, KOCHI.** ## **RESPONDENT'S EXHIBITS - NIL** ## **//TRUE COPY//** **P.A TO JUDGE** **DG** ## **T.R.RAMACHANDRAN NAIR, J.** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C).No. 19824 of 2012** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **DATED THIS THE 8TH DAY OF OCTOBER, 2012** ## **JUDGMENT** The petitioners are respectively the wife and son of one Shri K.T. Augustine who has been missing for more than 9 years. The marriage of the first petitioner and Shri Augustine took place on 17.10.1982 and the second petitioner was born on 28.9.1983. It is stated that Shri Augustine went out from the family house at about 7 a.m. on 24.7.2003 for purchasing household items from the nearby stationary at Statue Junction, but he did not return thereafter. A crime was registered on 26.7.2003 by Thoppumpady Police as Crime No.160/2003 under the caption 'manmissing'. Ext.P1 is the copy of the First Information Report, Ext.P2 is the news item published by the petitioners in Malayala Manorama on 30.7.2007 and Ext.P3 is the copy of the final report wherein the Police has recorded that the whereabouts of Shri Augustine could not be traced out and the case may be closed as 'undetected.' It is submitted that the date of occurrence and the date of report are wrongly stated as 24.7.2004 and 26.7.2004 instead of 24.7.2003 and 26.7.2003 respectively. 2. The petitioners are seeking for a direction to the respondents to W.P.(C).No.19824/2012 -2- disburse the benefits under a policy taken by Shri Augustine, numbered as 773248142. The policy commenced from 14.11.1998 and the premium at the rate of Rs.1,023/- is payable quarterly. 3. The petitioners gave intimation regarding the missing of Shri Augustine by Ext.P4 dated 15.4.2004 along with the copy of F.I.R. and the paper report. As advised by the third respondent, the premium amounts were being remitted regularly by the petitioners. Ext.P5 is the copy of the representation submitted by the petitioners before the third respondent requesting that the policy may be closed and the amount due under the policy may be disbursed to the petitioners, since the whereabouts of Shri Augustine are not known for more than seven years and therefore he is to be presumed as 'not alive'. The third respondent as per Ext.P6 letter, instructed the petitioners to produce the attested copies of F.I.R. and final report and the same also were forwarded by the petitioners. Seeking for a direction to disburse the amount due under the policy, this writ petition has been filed. 4. On behalf of the respondents, a statement has been filed wherein it is stated that as far as presumption of death is concerned, the Corporation is not entitled to make a declaration to that effect as there should be a W.P.(C).No.19824/2012 -3- declaration by the Court. The fact that the Corporation has advised the petitioners to continue to remit the premium, to avoid any lapsation and risk, has been admitted in para 5 of the statement. Lastly, it is stated that there is discrepancy between the date of missing, viz. 24.7.2003 instead of 24.7.2004 and the probable date and time of death has to be established by a court. 5. Shri N. Sugathan, learned counsel for the petitioners submits that the presumption under Section 108 of the Evidence Act is available and therefore the petitioners are entitled for the relief sought for. Reliance is placed on the judgments of this Court in **Bhargavi Amma v. Bhaskara Pillai** (1988 (2) KLT 537), **Mariamma Samuel v. State of Kerala** (2012 (3) KLT 152) and that of the Apex Court in **L.I.C. of India v. Anuradha (2004 (2) KLT 351 – SC).** 6. It is submitted that the petitioners have been remitting the premium and this Court can draw a presumption under Section 108 of the Evidence Act and can direct the respondents to disburse the benefits irrespective of the date on which the claim has been made, when the premium has been paid thereafter. Learned counsel for the petitioners submits that the legal position in the matter admits of no doubt in the light W.P.(C).No.19824/2012 -4- of the declaration of law and the presumption available under Section 108 of the Evidence Act. 7. In **Bhargavi Amma's case** (1988 (2) KLT 537), this Court held that the presumption under Section 108 of the Evidence Act is available when a man is unheard of for a period of seven years. 8. The judgment of the Apex Court in **Anuradha's case** (2004 (2) KLT 351 – SC), has dealt with the matter in detail in the light of the various decisions of the Apex Court. That was a case where a claim was raised with respect to the amounts payable under the life insurance policy. In paragraphs 13 and 14 the legal position was declared thus: “ The law as to presumption of death remains the same whether in Common Law of England or in the statutory provisions contained in Ss.107 and 108 of the Indian Evidence Act 1872. In the scheme of Evidence Act, though Ss.107 and 108 are drafted as two Sections, in effect, S.108 is an exception to the rule enacted in S.107. The human life shown to be in existence, at a given point of time which according to S.107 ought to be a point within 30 years calculated backwards from the date when the question arises, is presumed to continue to be living. The rule is subject to a proviso or exception as contained in S.108. If the persons, who would have naturally and in the ordinary course of human affairs W.P.(C).No.19824/2012 -5- heard of the person in question, have not so heard of him for seven years, the presumption raised under S.107 ceases to operate. S.107 has the effect of shifting the burden of proving that the person is dead on him who affirms the fact. S.108, subject to its applicability being attracted, has the effect of shifting the burden of proof back on the one who asserts the fact of that person being alive. The presumption raised under S.108 is a limited presumption confined only to presuming the factum of death of the person who's life or death is in issue. Though it will be presumed that the person is dead but there is no presumption as to the date or time of death. There is no presumption as to the facts and circumstances under which the person may have died. The presumption as to death by reference to S.108 would arise only on lapse of seven years and would not by applying any logic or reasoning be permitted to be raised on expiry of 6 years and 364 days or at any time short of it. An occasion for raising the presumption would arise only when the question is raised in a Court, Tribunal or before an authority who is called upon to decide as to whether a person is alive or dead. So long as the dispute is not raised before any forum and in any legal proceedings the occasion for raising the presumption does not arise. If an issue may arise as to the date or time of death the same shall have to be determined on evidence - direct or circumstantial and not by assumption or presumption. The burden of proof would lay on the person who makes assertion of death having taken place W.P.(C).No.19824/2012 -6- at a given date or time in order to succeed in his claim. Rarely it may be permissible to proceed on premise that the death had occurred on any given date before which the period of seven years' absence was shown to have elapsed.” The Apex Court was of the view that “though it will be presumed that the person is dead but there is no presumption as to the date or time of death. There is no presumption as to the facts and circumstances under which the person may have died. The presumption as to death by reference to Section 108 would arise only on lapse of seven years.” 9. Herein, the date from which Sri Augustine was missing, going by the averments in the writ petition, is 24.7.2003. Even if there is a mistake in the date as 24.7.2004, seven years have gone already. Therefore, a presumption about death can be drawn safely. 10. Learned Standing Counsel for the Corporation, Shri Easwaran submits that the Corporation is not empowered to grant a declaration and hence, the claim was not finalised. 11. In the light of the above, the claim for disbursement of amounts under the L.I.C. Policy bearing No.773248142 taken by Shri K.T. Augustine, will be processed and the eligible amounts will be disbursed to W.P.(C).No.19824/2012 -7- the petitioners within a period of two months from the date of receipt of a certified copy of this judgment. Since the petitioners have raised a claim as per Ext.P5 dated 24.9.2010 and as the policy has been kept alive by payment of premiums, the claim will be adjudicated on that basis and the premiums paid thereafter will be refunded. The writ petition is accordingly allowed. No costs. ## **(T.R.RAMACHANDRAN NAIR, JUDGE)** ## **kav/**