LETTERS PATENT APPEAL No.635 OF 2004 --------- Against the judgment dated 6.5.2004 passed by a learned Single Judge of this Court in C.W.J.C. No. 7736 of 2003. --------- 1.The Life Insurance Corporation of India through the Divisional Manager, Muzaffarpur Divisional Office, Jeevan Prakash Umashankar Prasad Marg, Muzaffarpur. 2. Zonal Manager, Eastern Zone, Life Insurance Corporation of India, Hindustan Building, 4 Chitranjan Avenue, Kolkata. 3. Branch Manger, Life Insurance Corporation of India, Branch No.1, Muzaffarpur, Town and District-Muzaffarpur ----- Respondents --- Appellants. Versus Manoj Kumar Mannu, son of Sri Ganesh Prasad Singh, resident of Village-Gyaspur, P.S. Paru, District- Muzaffarpur ---- Petitioner ---- Respondents. --------------- For the Appellant : Mr. Umesh Prasad Singh, Sr. Advocate, with Mr. Rajeev Ranjan Prasad, Advocate. For the Respondents: Mr. Sourendra Pandey,Advocate. Mr. Rajesh Kumar Mishra, Advocate. ---------- P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE BIRENDRA PRASAD VERMA ******* S.K.Katriar,J. This appeal under Clause 10 of the Letters Patent of the High Court of Judicature at Patna raises a grievance with respect to the order dated 6.5.2004, passed by a learned Single Judge of this Court in C.W.J.C. No. 7736 of 2003 (Manoj Kumar Mannu Vs. The Life Insurance Corporation of India and others), whereby the writ petition has been allowed, and the Life Insurance Corporation of India (the appellant herein) has been directed to make payment of the renewal commission to the writ petitioner (the respondent 2 herein), as per the established procedure. We shall go by the description of the parties occurring in the writ proceedings. 2. A brief statement of facts essential for the disposal of the appeal may be indicated. The writ petitioner was appointed as an agent on probation with effect from 7.11.1988, by the Branch Manager, Muzaffarpur Branch Office-1, by order dated 30.11.1988 (Annexure-1 series). He was allotted Agency Code No. 04042531. He was in due course confirmed as an agent in terms of regulation 7(2) of the Life Insurance Corporation of India (Agents) Regulations, 1972 (hereinafter referred to as “the Regulations‟). After having served for about thirteen years, the petitioner submitted his letter of resignation dated 15.12.2001 (Annexure-A), to the Branch Manager which was really submitted on 20.12.2001. It is relevant to state here that ten days prior to the submission of resignation letter, the petitioner had obtained an advance sum of Rs.65,000/- from the same Branch for the ostensible purpose of purchase of a motor-cycle. The Corporation promptly issued letter dated 28.1.2002 (Annexure-3), to the petitioner, conveying therein that the letter of resignation was pending consideration, and his agent‟s commission in the meanwhile has been stopped. The petitioner was communicated with the impugned order dated 20.2.2003 (Annexure-4/1), whereby it was conveyed to him that his letter of resignation had been 3 accepted, and his agent‟s commission was forfeited in terms of sub-section (c) of Section 44 of the Insurance Act, 1938 (hereinafter referred to as „the Act‟). This letter curiously does not mention as to the date with effect from which the letter of resignation was accepted. The aforesaid advance sum of Rs.65,000/- was adjusted against the dues of the writ petitioner as agent‟s commission. The petitioner, therefore, preferred the present writ petition challenging the order dated 20.2.2003 (Annexure-4/1), whereby he has been deprived of the agent‟s commission. The same has been allowed by the learned Single Judge, wherein it has inter alia been held that the petitioner‟s case is covered by regulation 19(1)(b) of the Regulations, and not Section 44(1)(c) of the Act. 3. Learned counsel for the Corporation submits that the learned Single Judge has erred in holding that the petitioner‟s case is covered by regulation 19 of the Regulations, and not Section 44 of the Act. He next submits that the petitioner is guilty of fraud who had mislead the Corporation by taking an advance sum of Rs.65,000/- in a situation where he had submitted his resignation letter dated 15.12.2001 (which was really handed over on 20.12.2001). He was fully aware that he was going to submit his letter for cessation of his agency notwithstanding which he had withdrawn the money. He relies on the observations of a 4 Division Bench of this Court in the case of Sukhamoy Maitra Vs. Emperor, reported in A.I.R. 1938 Patna 165 (at page 169, left hand column). 4. Learned counsel for the petitioner has supported the order of the learned Single Judge. 5. We have perused the materials on record and considered the submissions of learned counsel for the parties. The Insurance Act, 1938 (4 of 1938) was brought on the statute book on 26.2.1938, and was enforced with effect from 1.7.1939 in terms of Section 1(3) of the Act to consolidate and amend the law relating to the business of insurance. The Act governed the entire range of business of insurance in India till such time the Parliament brought on the statute book the Life Insurance Corporation Act, 1956 (31 of 1956) (hereinafter referred to as „the L.I.C. Act.‟) which came on the statute book on 18.6.1956, and was enforced with effect from 1.7.1956 in terms of section 1 of the L.I.C. Act. The L.I.C. Act is intended to be “An Act to provide for the nationalization of life insurance business in India by transferring all such business to a Corporation established for the purpose and to provide for the regulation and control of the business of the Corporation and for matters connected therewith or incidental thereto.”(Emphasis added) 6. It thus appears to us that the life insurance business 5 was, with the promulgation of L.I.C. Act, taken out of the purview of the Act to be governed by the L.I.C. Act. It is further evident, as we shall have the occasion to notice at a later stage that, in view of the provisions of Section 43 of the L.I.C. Act, the same (the L.I.C. Act) has amended from time to time. 6.1. Section 49 of the L.I.C. Act is headed “The power to make regulations”, and provides that the Corporation may, with the previous approval of the Central Government by notification in the Gazette of India, make regulations not inconsistent with this Act and the rules made thereunder to provide for all matters for which provision is expedient for the purpose of giving effect to the provisions of the L.I.C. Act. In exercise of the powers conferred by Section 49, the Corporation framed the Life Insurance Corporation of India (Agents) Regulation 1972 which, principally to govern the terms and conditions of engagement and allied matters with respect to the agents appointed/nominated by it. It is evident on a perusal of Section 43 of the L.I.C. Act that the same adopted certain provisions of the Act for proper administration to give effect to the provisions of the L.I.C. Act. Section 43 of the L.I.C. Act is reproduced hereinbelow: “43. Application of the Insurance Act.- (1) The following sections of the Insurance Act shall, so far as may b e, 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, 6 121, 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 authorized by the [Authority] in this behalf in sub-section (1) thereof included a reference to an officer of the Corporation authorized by the [Authority] 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.” 7. Sub-section (2) of Section 43 of the L.I.C. Act incorporates certain provisions of 1938 Act, for its application under the L.I.C. Act after the same are notified in the Official Gazette. Learned counsel for the respondent Corporation (the appellants herein) has informed us at the 7 Bar that the same has been duly notified with the difference that sub-section (c) of Section 44 of the L.I.C. Act has been substituted by a different clause, and the explanation to sub- section(c) has been omitted. In other words, Section 44 of the Act for the purpose of its application reads as follows : “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 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.” (Emphasis added) 8. On a perusal of the provisions of the L.I.C. Act, and the Regulations it appears to us that the life insurance 8 business has been taken out of the purview of 1938 Act, is governed by the provisions of the L.I.C. Act, the Rules made thereunder in terms of section 48, and the Regulations framed under section 49, of the L.I.C. Act. As stated hereinabove, the provisions of Section 43 of the L.I.C. Act adopts certain provisions of the Act indicated therein and, therefore, the sections mentioned therein would apply to the affairs of the Life Insurance Corporation, but not the Act as a whole. Furthermore, Section 44 of the Act in its modified form and set out in paragraph 7 hereinabove, now also applies to the affairs of the L.I.C. Act. 9. It is evident that the Life Insurance Corporation is a specialized enactment to govern the life insurance business, and the Regulations is equally specialized, to govern the terms and conditions between the Corporation and its agents. A difficult situation has been presented before us that certain provisions of the Section 44 of the Act in its modified form applicable to the affairs of the Corporation is in apparent conflict with certain provisions of the Regulations. We shall first deal with the provisions of Section 44 of the Act in its modified form. It is the common case of the parties that the agents are not employees of the Corporation, are not governed by terms and conditions of employment, have contractual relationship to procure business and are paid commission as per the prescribed chart which is on 9 percentage basis of the premium amount received by the insurer from the insured. The modified Section 44 of the Act is headed “Prohibition of cessation of payments of commission”, and provides for payment of the agent‟s commission after cessation of contractual relationship of the agency is terminated in the prescribed manner, as a matter of right, and can be stopped only under three circumstances mentioned under the proviso. Learned counsel for the respondent relies on Section 44 (c) and submits that a person who directly or indirectly solicits or procures insurance business for any “person” shall be deprived of the agent‟s commission after cessation of the relationship. The question for our consideration is whether or not the expression “person” occurring in Section 44(1) (c) of the Act includes only a human being, or also includes a juristic person. The answer is to be found in Section 42 A of the Act which is headed “Registration of principal agents, chief agents and special agents”. A perusal of whole of Section 42 A of the Act creates an impression in our minds that such agents were earlier governed by the Act, and were appointed under principal agents, chief agents and special agents who can be juristic persons also. However, in view of omission of the explanation to Section 44 (1) (c) of the Act for the purpose of the Corporation, we are of the view that “person” does not include an insurer. Any other construction of Section 44 (1) 10 (c) of the Act shall bring it in conflict with the provisions of the Regulations, which is now the primary code to govern the relationship of the Corporation and its agents. We, therefore, conclude that the expression „person‟, occurring in section 44(1)(c) of the Act, includes a juristic person, but does not include an insurer, which in the present case is the Corporation. 10. It follows as a matter of corollary that the provisions of the Regulations govern the relationship of the Corporation and its agent. This is also consistent with the established principle of law that, a situation which seems to be governed by a general enactment as well as a specialized enactment, the former will give way to the latter. 11. Coming to the facts and circumstances of the present case, the writ petitioner was appointed on 07.11.1988, and had submitted his resignation letter dated 15.12.2001 which was really handed over on 20.12.2001. In other words, the petitioner had served the Life Insurance Corporation for more than thirteen years on the date of his resignation. Regulation 17 provides for termination of agency by notice and, inter alia, provides that an agent may, by giving one month‟s notice in writing to the competent authority, discontinue his agency and, after expiry of the period of one month, the same shall stand terminated. Cessation of relationship takes place by automatic operation of law after 11 expiry of the prescribed period, subject to cases of fraud, misrepresentation or the like. In that view of the matter, it was not open to the Corporation to delay acceptance of the resignation letter beyond the period of one month commencing from 20.12.2001. Regulation 19 provides for payment of commission after discontinuance of agency and, inter alia, lays down to the effect that, in the event of termination of agency, except for fraud, the commission on the premiums received in respect of the business secured by him shall be paid to him if such agent has continually worked as an agent for at least ten years since his appointment. The admitted position is that the petitioner had worked continually for more than ten years as an agent of the Corporation. Therefore, he is entitled to receive the agent‟s commission after discontinuance of agency subject to any act of fraud, misrepresentation or the like, which we shall consider hereinafter, and the Corporation has no discretion in the matter. 12. Learned counsel for the respondent has advanced elaborate submissions to the effect that, ten days prior to the submission of letter of resignation, the writ petitioner had obtained a sum of Rs.65,000/- by way of loan to purchase a motor-cycle. In his submission, it was surreptitious and under-hand method to receive his agent‟s commission in advance or against the existing dues. He relies on the 12 following observations made in the case of Sukhamoy Maitra (supra): “…It was added that when the author of the deceit seeks some advantage to himself it can generally be assumed that there is an equivalent in loss or risk of loss to some one else, and if so there was fraud….” 13. It appears to us that taking an advance of Rs.65,000/- as loan for purchase of a motor-cycle was admissible under the prescribed procedure withdrawing the advance amount in close proximity to submission of resignation may be an act of indiscretion. The Corporation has not informed us that the amount was in excess of his existing dues as the agent‟s commission, or far in excess of his expected dues in the foreseeable future. It is a possible situation that he may not have received the offer from the Allianz Bajaj Life Insurance Company Ltd., or may not have made up his mind, to join as Sales Team Manager. In any view of the matter, he was liable to account for it, which was very easy to be adjusted in view of his entitlement to receive his agent‟s commission even after cessation of the relationship. We are not inclined to take it to be a case of fraud or the like. 14. The resignation letter became effective in the third week of January 2002. The Corporation had forwarded its communication dated 20.2.2003 to the writ petitioner stating therein that its agent‟s commission has been forfeited. The present writ petition was allowed by order dated 6.5.2004. 13 The present appeal was admitted by order dated 28.3.2006, and no stay order was passed by this Court, notwithstanding which the Corporation has not made payment of the agent‟s commission to the petitioner even though the order of the learned writ court had become enforceable. In that view of the matter, the writ petitioner would be entitled to interest at the rate of 6% on all his arrears from the date the amount(s) became due till the date of payment. 15. In the result, we dismiss the appeal. We agree with the order of the learned Single Judge. In the circumstances of the case, there shall be no order as to costs. B.P.Verma, J. I agree. Patna High Court, Patna. Dated 25th November,2010 Vinay/A.F.R. ( S. K. Katriar,J. ) (Birendra Prasad Verma, J.)