IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 17TH AUGUST 2009 / 26TH SRAVANA 1931 WP(C).No. 26791 of 2008(M) -------------------------- PETITIONER(S): --------------- MR.BABY JOHN,THURUTHUMMEL HOUSE THAMARACHAL,KIZHAKKAMBALAM P.O., ERNAKULAM DISTRICT. BY ADV. SRI.C.G.SUNIL SRI.T.J.MICHAEL SRI.SAJI MATHEW SRI.DENU JOSEPH RESPONDENT(S): --------------- 1. THE LIFE INSURANCE CORPORATION OF INDIA ERNAKULAM DIVISIONAL OFFICE, JEEVAN PARAKASH LIC BUILDINGS,M.G.ROAD, ERNAKULAM. 2. THE SENIOR DIVISIONAL MANAGER LIC OF INDIA,JEEVAN PARAKASH, LIC BUILDINGS,M.G.ROAD, ERNAKULAM. 3. THE BRANCH MANAGER LIC OF INDIA,TRIPUNITHURA,P.B.NO.22, KANIKATT BUILDINGS,STATUE JUNCTION, TRIPUNITHURA 682 301. ADV. SRI .LAL GEORGE FOR R1-3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: W.P.C.NO. 26791/2008 -------------------------------------------------------------------- EXT.P1 TRUE COPY OF CERTIFICATE DT. 31-12-2002. EXT.P2 FLASH DT. 26-7-2002 CIRCULATED BY R2. EXT.P3 LICENCE ISSUED IN FAVOUR OF PETITIONER. EXT.P4 PHOTOGRAPH AND LETTER DT. 19-7-2006. EXT.P5 REPRESENTATION DT. 10-3-2008 EXT.P6 LETTER DT. 4-4-2008. EXT.P7 LETTER DT. 25-4-2008. EXT.P8 LETTER DT. 5-5-2008. EXT.P8(a) COPY OF A.D. CARD. EXT.P9 TDS CERTIFICATE. EXT.P10 LETTER DT. 24-6-2008. EXT.P11 LAWYER NOTICE DT. 6-8-2008. RESPONDENTS' EXHIBITS; ----------------------------------- EXT.R1(a) PHOTOSTAT COPY OF REPLY NOTICE DT. 2-9-2008. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 26791 of 2008 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 17th August, 2009. J U D G M E N T The petitioner was an agent appointed by the Life Insurance Corporation of India under the Life Insurance Corporation of India (Agents) Regulations, 1972. He has more than 20 years of service as an agent of the LIC. The said Regulations have been declared as Rules made under the Life Insurance Corporation Act as per Section 48(2A) of the said Act, 1956. The petitioner contends that he was entitled to exemption from doing minimum business under Regulation 9(4) for which the petitioner filed Ext. P5 application, which was not favourably considered by the respondents. The petitioner thereafter resigned as an agent of the LIC by Ext. P10. The insurance renewal commission payable to the petitioner from March, 2009 to August 2008 was withheld despite the petitioner issuing Exts.P5, P7, P8 P10 and P11 requests for payment of the same. The respondents issued Ext. P9 TDS certificate stating that for the total commission of Rs. 1,90,832.67 for the month of March, 2008, a sum of Rs. 19,655/- has been deducted as income tax. But, no payment was made nor was any proper reply given to the petitioner. It is under the above circumstances the petitioner has filed this writ petition seeking the following reliefs: “(a) Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents 1 to 3 to release the insurance commission payable to the petitioner for the month of March, 2008 to August, 2008 forthwith. b) Issue a writ of mandamus or any other appropriate writ, order or direction declaring that the petitioner is entitled to get insurance renewal commission for the business secured by him payable for the succeeding period and to direct the respondents to make such payments as and when falls due without any delay.” 2. A counter affidavit has been filed by the Life Insurance W.P.C. No. 26791/08 -: 2 :- Corporation of India, wherein they have contended that in view of Section 44(c) of the Insurance Act, 1938, which is applicable to the agents of LIC also, the petitioner is not entitled to any renewal commission, since he has canvassed insurance work for another Company. 3. Regarding that contention, the petitioner would submit that Section 44 of the Insurance Act is not applicable to the petitioner. He raises two contentions in this regard. The first contention is that for Section 44 to be applicable, the Central Government should have issued a notification making the same applicable to the LIC as provided in Section 43 of the LIC Act, 1956, which has not been done. According to the petitioner, Section 48 (2C) of the LIC Act stipulates that Rules made under clause (cc) of sub-section (2) of Section 48 would be applicable notwithstanding anything contained in the Industrial Disputes Act , 1947 or any other law or any agreement, settlement, award or other instrument for the time being in force. Therefore, Section 44 is inapplicable for the purpose of payment of renewal commission on discontinuance of agency, insofar as by virtue of Section 48(2A) of the LIC Act, the Agents Regulations, 1972 would be deemed to be rules framed under Section 48 and payment of commission after cessation of agency would be governed only by those rules. According to the petitioner, Rule 19 of the Agents Regulations provides for payment of commission even after discontinuance of agency, which does not contain any restrictive clause as in Section 44. 3. Counsel for the LIC has produced before me GSR 262(E) issued by the Government of India, whereby the earlier notification GSR 734 dated 23-8-1958 has been made subject to the modifications mentioned in the new notification. That notification was published on 27-4-1972. According to counsel for the petitioner, these notifications W.P.C. No. 26791/08 -: 3 :- would show that a notification as enjoined by Section 43 of the LIC Act making Section 44 of the Insurance Act applicable to the LIC subject to the modification therein, has been issued. The contention is that under Section 44(c) of the Insurance Act, an agent who has served the insurer continually and exclusively for at least ten years would not be entitled to payment of commission on cessation of agency, if the agent directly or indirectly solicit or procure insurance business for any other person. According to the LIC of India, the petitioner has been doing insurance business for the Reliance Life Insurance Company Ltd., and therefore by virtue of clause (c) of Section 44 of the LIC Act, made applicable to the LIC by notification issued under Section 43 of the LIC Act, 1956, the petitioner has become disentitled for payment of renewal commission after cessation of agency. They point out that by Ext. P6 letter dated 4-4- 2008, the petitioner has been specifically directed to inform the LIC as to whether the petitioner is working for Reliance Life Insurance Company or any other Insurance Company in any capacity. Although he filed Ext. P7 reply, he did not reply either way. They point out that while giving evidence as PW2 in O.S.No. 299/2007 of the Sub Court, Perumbavoor, the petitioner had on 5-8-09 specifically deposed that he was formerly an LIC agent and now he is working as Reliance CD. According to the LIC, the petitioner was working as a Channel Development Associate of Reliance Insurance Company, which amounts to soliciting or procuring insurance business for that Company. 4. The petitioner would try to counter the argument by pointing out that while issuing G.S.R.262(E), the Government had decided to make Section 44 of the Insurance Act applicable to the LIC of India with certain modifications and in view of those modifications, the petitioner would eligible for renewed premium as per the W.P.C. No. 26791/08 -: 4 :- modified Section 44 even after cessation of agency. 5. I have considered the rival contentions in detail. 6. Section 43 of the LIC Act, 1958 reads thus: “43. Application of the Insurance Act:- (1) The following sections of the Insurance Act shall, so far as may be, apply to the Corporation as they apply to any other insurer, namely:- Sections 2, 2B, 3, 18, 26, 33, 38, 39, 41, 45, 46, 47A, 50, 51, 52, 110A, 110B, 110C, 119, 121, 122 and 123. (2) The Central Government shall as soon as may be after the commencement of this Act, by notification in the Official Gazette, direct that the following sections of the Insurance Act shall apply to the Corporation subject to such conditions and modifications as may be specified in the notification, namely:- Sections 2D, 10, 11, 13, 14, 15, 20, 21, 22, 23, 25, 27A, 28A, 35, 36, 37, 40, 40A, 40B, 43, 44, 102 to 106, 107 to 110, 111, 113, 114 and 116A. (2A) Section 42 of the Insurance Act shall have effect in relation to the issue to any individual of a licence to act as an agent for the purpose of soliciting or procuring life insurance business for the Corporation as if the reference to an officer authorised by the Controller in this behalf in sub section (1) thereof included a reference to an officer of the Corporation authorised by the Controller in this behalf. (3) The Central Government may, by notification in the Official Gazette, direct that all or any of the provisions of the Insurance Act other than those specified in sub section (1) or sub section (2), shall apply to the Corporation subject to such conditions and modifications as may be specified in the notification. (4) Every notification issued under sub section (2) or sub section (3) shall be laid for not less than thirty days before both Houses of Parliament as soon as possible after it is issued, and shall be subject to such modifications as Parliament may make during the session in which it is so laid or the session immediately following. (5) Save as provided in this section nothing contained in the Insurance Act shall apply to the Corporation.” W.P.C. No. 26791/08 -: 5 :- Section 44 of the Insurance Act reads thus: “44. Prohibition of cessation of payments of commission:- (1) Notwithstanding anything to the contrary contained in any contract between any person and an insurance agent providing for the forfeiture or stoppage of payment of renewal commission to such insurance agent, no such person shall, in respect of life insurance business transacted in India, refuse payment to an insurance agent of commission due to him on renewal premium under the agreement by reason only of the termination of his agreement, except for fraud: Provided that-- (a) such agent ceases to act for the insurer concerned after the Central Government has notified in the Official Gazette that it is satisfied that the circumstances in which the said insurer is placed are such as to justify the agent's ceasing to act for him; or (b) such agent has served the insurer continually and exclusively in respect of life insurance business for at least five years and policies assuring a total sum of not less than fifty thousand rupees effected through him for the insurer were in force on a date one year before his ceasing to act as such agent for the insurer, and that the commission on renewal premiums due to him does not exceed four per cent in any case; or (c) such agent has served the insurer continually and exclusively for at least ten years and after his ceasing to act as such agent he does not directly or indirectly solicit or procure insurance business for any other person. Explanation:- For the purposes of this sub-section, service of an insurance agent under a chief agent of the insurer, whether before or after the commencement of the Insurance (Amendment) Act, 1950, shall be deemed to be service under the insurer. (2) Any commission payable to an insurance agent under the provisions of clauses (b) and (c) of the proviso to sub section (1) shall, notwithstanding the death of the agent, continue to be payable to his heirs for so long as such commission would have been payable had such insurance agent been alive.” (underlining supplied) That Section as such was originally applicable to the LIC of India by W.P.C. No. 26791/08 -: 6 :- G.S.R. 734 dated 23-8-1958. By G.S.R.262(E) dated 27-4-1972, the following modifications were made to the said Section as applicable to the LIC: “2. In section 44-- (a) for clause (b) of the proviso to sub section (1), the following clauses a shall be substituted, namely: (b) “such agent being an agent appointed before the 1st May, 1972 has served the insurer continuously in respect of life insurance business for at least five years and policies assuring a total sum of not less than fifty thousand rupees effected through him were in force on a date one year before his ceasing to act as such agent for the insurer: or (bb) such agent being an agent appointed on or after the 1st May, 1972, has served the insurer continually in respect of life insurance business for at least five years and policies assuring a total sum of not less than two lakhs rupees effected through him for the insurer were in force on a date one year before his ceasing to act as such agent for the insurer: or (bbb) such agent, having worked as an insurance agent for the insurer continually for at least two years from the date of his appointment, ceases to act for the insurer by reason of the termination of his appointment by the insurer solely on the ground of his having been physically or mentally incapacitated and policies assuring a total sum of of less than one lakh of rupees effected through him were in force on the date immediately prior to such termination: or” xx xx xx” But, clause (c) of the proviso to Section 44(1) was left untouched. Therefore, going by the same, the petitioner would not be eligible for payment of renewal commission on cessation of agency. The petitioner himself admits that he had resigned as an agent from the LIC by Ext. P10 dated 24-6-2008. His contention is that in view of Section 48(2C), the provisions of the Insurance Act is not applicable to the petitioner. The said clause 2(cc) and sub-clause (2C) of Section 48 of the LIC Act read thus: W.P.C. No. 26791/08 -: 7 :- “48. Power to make rules:- (1) xx xx xx (2) xx xx xx (cc) the terms and conditions of service of the employees and agents of the Corporation, including those who became employees and agents of the Corporation on the appointed day under this Act; xx xx xx (2C) The provisions of clause (cc) of sub section (2) and sub section (2B) and any rules made under the said clause (cc) shall have effect, and any such rule made with retrospective effect from any date shall also be deemed to have had effect from that date, notwithstanding any judgment, decree or order of any court, tribunal or other authority and notwithstanding anything contained in the Industrial Disputes Act, 1947 (14 of 1947), or any other law or any agreement, settlement, award or other instrument for the time being in force.” The contention of the petitioner is that in view of sub section (2C) and since the Rules made under Section 48(2)(cc) would prevail over any other law including Section 44 of the Insurance Act, the petitioner is entitled to agency commission even after cessation of agency. I am unable to agree. Sub section (2C) would only mean that the Rules would have effect notwithstanding any other law for the time being in force. Once a notification under Section 43 of the LIC Act is issued making Section 44 with modifications applicable to LIC, the same forms part of the Life Insurance Corporation Act, 1956 itself and therefore Section 44 as applicable to LIC ceases to be any other law. 7. The petitioner's contention that in view of the modified Section 44, the petitioner is eligible for the modified Section (b) of Section 44, does not appeal to me. If I hold that the provisions would be applicable to the petitioner, then sub-clause (c) of the proviso to Section 44 would become meaningless and would not be applicable to W.P.C. No. 26791/08 -: 8 :- anybody. In the above circumstances, I am satisfied that in view of sub-clause (c) of the proviso to Section 44 of the Insurance Act made applicable to the LIC by notification under Section 43 of the Life Insurance Corporation Act, the petitioner has ceased to become eligible for payment of renewal commission on cessation of agency since as proved by the respondents he has been soliciting or procuring insurance business for another person. Therefore, the petitioner is not entitled to the reliefs prayed for. Accordingly, the writ petition is dismissed. Sd/- S. Siri Jagan, Judge. Tds/