Regular Second Appeal No.77 of 2010 (O & M ) IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: February 23, 2011. Regular Second Appeal No.77 of 2010 (O & M ) Sandeep Goyal and another ….Appellants Versus National Insurance Company Limited ...Respondent CORAM: HON’BLE MR. JUSTICE MOHINDER PAL. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not. 3. Whether the judgment should be reported in the Digest? Present: Ms. Puja Chopra, Advocate, for the appellants. Mr. V. Ramswaroop Singh, Advocate, for the respondent. -.- MOHINDER PAL, J. Civil Misc. No.312 -C of 2010. For the reasons stated in the application, which is supported by an affidavit, the same is allowed and the delay of one day in filling the appeal is condoned. Regular Second Appeal No.77 of 2010 (O & M ) Regular Second Appeal No.77 of 2010 (O & M ) Plaintiffs are in second appeal aggrieved against the judgments and decrees passed by both the Courts below whereby their suit for declaration and permanent injunction in respect of recovery of Rs.57,269/- from Sandeep Goyal (plaintiff-appellant No.1) and Rs.3380/- from Seema Kumari (plaintiff-appellant No.2), wife of appellant No.1, by the National Insurance Company Limited (defendant- respondent) (hereinafter referred to as `the Insurance Company) has been dismissed. I have heard Ms. Puja Chopra, Advocate, appearing for the appellants and Mr. V. Ramswaroop Singh, Advocate, appearing for the respondent and have gone through the records of the case. The plaintiffs-appellants, who are husband and wife, are the agents of the Insurance Company. Plaintiff-appellant No.1 received excess commission of Rs.57,269/- whereas plaintiff-appellant No.2 received excess commission of Rs.3380/- from the Insurance Company, which was detected by the Audit Party of the Insurance Company. The Insurance Company, after issuing notice to the appellants, sought to recover the excess amount of commission paid to them from the future amount of commission payable to them (plaintiffs) when they failed to deposit the said amount even after issuance of memorandum dated 31.7.2003 and the reminder dated 8.8.2003. The plaintiffs then filed the instant suit for a declaration that the said recovery proceedings initiated by the Insurance Company against them were illegal and for a permanent injunction restraining the Insurance Company from recovering this amount of excess payment from the plaintiffs. Regular Second Appeal No.77 of 2010 (O & M ) Admittedly, before proceeding to recover the amount of excess commission received by the plaintiffs from the Insurance Company, they were issued memo dated 31.7.2003 and thereafter reminder dated 8.8.2003. Plaintiff – appellant No.1 Sandeep Goyal, while deposing in Court as P.W.1, in his cross-examination, admitted that before deducting the commission of Rs.57269/-, the Insurance Company had sent an intimation to him. He also admitted that his wife plaintiff-appellant No.2 Seema Kumar had also been sent such an intimation before deducing the amount of excess commission received by her from the Insurance Company i.e Rs.3380/-. Thus, sufficient opportunity had been granted to the appellants to file reply and explain their position. The commission paid to the plaintiffs had been calculated by the auditors of the Insurance Company as per norms. The plaintiffs were entitled to charge commission at the rate of 15 per cent from the individual insurer and at the rate of 5 per cent from the firms. The appellants had claimed commission at the rate of 15 per cent by declaring to the Insurance Company the cover notes Exhibits D.1 to D.22 as individual insurances, whereas the audit party of the Insurance Company found these cover notes of the firms and not of individuals. Plaintiff Sandeep Goyal (P.W.1), in his cross- examination admitted that policies Exhibits D.1 to D.22 had been issued in the names of the firms. Thus, it proves in unequivocal terms that the said policies were not in favour of individuals. As such the commission was paid in excess to the appellants. Under the circumstances, no interference is called for in the firm of findings of fact recorded by both the Courts below. Learned counsel for the appellants, during the course of arguments, also could not persuade me, Regular Second Appeal No.77 of 2010 (O & M ) by referring to any case law or by pointing out any material on record to show that the findings recorded by the Courts below are not based on proper appreciation of evidence, to take a different view than the one taken by the Courts below. In the result, there is no substance in this appeal. The same is, accordingly, hereby dismissed Dated: February 23, 2011. (MOHINDER PAL) ak JUDGE