IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 5TH JANUARY 2010 / 15TH POUSHA 1931 AS.No. 906 of 1997(C) --------------------- OS.445/1993 of II ADDL.SUB COURT, KOZHIKODE .................... APPELLANT(S): DEFENDANTS -------------- 1. LIFE INSURANCE CORPORATION OF INDIA, REP. BY THE DIVISIONAL MANAGER, KOZHIKODE. 2. LIFE INSURANCE CORPORATION OF INDIA, THAMARASSERY BRANCH, REP. BY THE BRANCH MANAGER. BY ADV. SRI.S.EASWARAN RESPONDENT(S): PLAINTIFFS --------------- 1. ROSAMMA, W/O. LATE CHAVARANAL APPACHAN ALIAS GEORGE, CHAVARNAL THAMASAM, KODENCHERI AMSOM DESOM, KOZHIKODE TALUK. 2. REENA (MINOR) DO. DO. 3. RAJI (MINOR), DO. DO. RESPONDENTS 2 & 3 ARE REPRESENTED BY 1ST RESPONDENT. THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 24/9/2009, THE COURT ON 05/01/2010 DELIVERED THE FOLLOWING: P.Q. BARKATH ALI, J. ------------------------------------------------------ A.S.906 OF 1997 ------------------------------------------------------ Dated: JUDGMENT The challenge in this appeal by the defeated defendants, Life Insurance Corporation of India, is to the judgment and decree of of the II Addl. Sub Judge, Kozhikode in O.S.No.445 of 1993 dated August 23, 1996 decreeing the suit for recovery of the amount due under an insurance policy of deceased Chavarnal Appachan @ George, the husband of 1st respondent/plaintiff and father of respondents 2 and 3/plaintiffs 2 and 3. 2. The case of the respondents/plaintiffs as testified by PW.1, the 1st plaintiff, and as detailed in the plaint was that deceased Chavarnal Appachan @ George had a life insurance policy with the LIC of India as per policy No.790400292 for Rs.50,000/-, that he died on July 8, 1990 and that as legal heirs of the deceased, plaintiffs are entitled to the amount due under the said policy and that in spite of the notice Ext.A1 dated March 7, 1992, the defendants did not pay the amount. 3. the 1st appellant/1st defendant is LIC of India represented by Divisional Manager, Kozhikode and the 2nd appellant/2nd defendant is the Thamarassery Branch Manager of the LIC. Defendants admitted the issuance of the policy, but contended that the deceased did not pay the premium due on March 28, 1990 onwards, that therefore as on AS 906/97 2 the date of death of the deceased, the policy has lapsed and that therefore the plaintiffs are not entitled to any amount under the said policy. 4. The 1st plaintiff was examined as PW.1 and Ext.A1 was marked on the side of the plaintiffs. The Administrative Officer of the 1st defendant was examined as DW.1 and Exts.B1 to B6 were marked on the side of the defendants. The trial court on an appreciation of evidence found that defendants have failed to prove that the policy was lapsed as contended by them and decreed the suit as prayed for. Defendants have now come up inn appeal challenging the said decree of the lower court. 5. The only point which arises for consideration is whether the decree and judgment of the lower court can be sustained. 6. The counsel for the appellants argued that it was for the plaintiffs to prove that the entire premia as on the date of death of the deceased has been paid and as the plaintiffs have failed in that aspect, the lower court is not justified in decreeing the suit. I am unable to agree. In a similar matter the Apex court has held in National Insurance Company v. Jugal Kishore (AIR 1988 SC 719) that:- The Supreme Court has consistently emphasised that it is the duty of the party which is in possession of a document which would be helpful in doing justice in cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. This duty is AS 906/97 3 greater in the case of instrumentalities of the State such as the appellant Insurance Company who are under an obligation to act fairly”. 7. In the present case DW.1 admitted that there is ledger for lapsed premium and there is separate ledger for each policy. Therefore in the light of the principles laid down in the above decision, defendants should have produced those documents. In this appeal the appellants filed I.A.3157/2009 to receive copy of ledger folio of the said policy. As no reason is stated in the affidavit for not producing the same before the lower court, it was dismissed by me. Therefore as such there is no evidence to show that the said policy was lapsed on the date of death of the deceased. That being so, the contention of the appellants that the relevant policy was lapsed on the date of death of the deceased and therefore the claim of the plaintiffs is not maintainable cannot be upheld. It follows and I hold that the plaintiffs are entitled to the amount claimed. That being so, confirming the decree and judgment of the lower court, the appeal is liable to be dismissed. As the respondents/plaintiffs remained absent, the parties shall bear their own costs. In the result, the appeal is dismissed. No costs. P.Q. BARKATH ALI, JUDGE mt/-