Case: The Vanguard Fire And Generalinsurance Co. Ltd., Madras Vs. M/S. Fraser And Ross And Another

otherwise, all the provisions of the Act, including S. 33, will apply to the Company.12. The last argument in support of the second contention is that the liabilities have been otherwise provided for. It is said that the Company deposited Rs. 3,94,000/- as security under S. 7 of the Act, which is still available to pay off the liabilities of the Company and therefore when such liabilities do not appear to exceed that amount they have otherwise been provided for. The question thus raised is whether the Company is entitled to take into account the security deposit under S. 7 in order to show that the liabilities have been otherwise provided for. The contention on behalf of the Controller is that when the Act envisages "provision otherwise", this provision has to be over and above the security deposit made by the Company under S. 7. It appears from S. 8 that this deposit is available for the discharge of liabilities arising out of policies of insurance issued by the insurer so long as any such liability remains unsatisfied. But even if a decree has been obtained by a policy-holder on the basis of a liability under policy he is not entitled to attach any part of this deposit until he shows that he has failed to realise the decree in any other way. Further it appears that S. 8 only contemplates policy-holders holding a decree attaching part of the security deposit in case they fail to realise their debt in any other way; it does not contemplate, for example, third parties who have decrees against an insurer, like the Company, (which in its motor insurance business indemnifies the policy-holders against third party risk upto a certain extent) doing so. Such third parties cannot under any circumstances attach any part of the deposit, for S. 8 only permits its attachment in the last resort by a policy-holders of the insurer in respect of a debt due upon a policy. But under S. 2D the decree of a third party in such a case would be the liability of the insurer in respect of his motor insurance business which could not be realised by attachment of any part of deposit under S. 7 Besides, even with respect to decrees of policy-holders the deposit could only be attached when all other ways of realizing the money have failed. In these circumstances it can hardly be said that the fact that this deposit is there is itself a "provision otherwise" to meet the liabilities of the insurer. The policy-holder cannot attach this deposit unless he first exhausts all other means. Even if he has got a decree and even if the insurer admits his claim and wants to pay it, he cannot do so out of the money in deposit under S. 7. As for the third parties who may have decrees against the insurer, they can never attach this deposit in view of the provisions of S. 8. It could not be the intention of the legislature when it was in effect exempting the insurer from all the provisions of the Act on his liabilities being otherwise provided for that such provision should include the security deposit under S. 7, when it has made it so difficult for a policy-holder to get his debt satisfied from that party could not in any way attach the deposit. In these circumstances we are of opinion that when S. 2D provides that the insurer shall be subject to all the provisions of the Act so long as his liabilities in India in respect of the business which is closed remain unsatisfied or not otherwise provided for, the satisfaction or "provision otherwise" does not refer to the deposit under S. 7 and has to be over and above that deposit. It is true that S. 9 provides that the insurer can take back the deposit after satisfying the Court that he has satisfied or otherwise provided for his liabilities. But this "provision otherwise" for the purposes of S.9 must obviously be other than the deposit itself. Further when the insurer wants to take back his deposit on making "provision otherwise" he will have to satisfy the Court that the "provision otherwise" has been fully made and the Court will be in a position to investigate into the matter. This, however, does not mean that if the insurer does not want to take advantage of S. 9 of the Act he can say without submitting to the terms of that section that he has made "provision otherwise", because the deposit which is made under S. 7 is more than all his liabilities of the insurance business that he has closed. It is urged that it is hard, for example, on an insurer who has a large deposit and whose liabilities are small that he should not be able to fall back on his deposit for the purposes of S. 2D. We do not however see any hardship in a case of this kind, for if it is a fact that the deposit of the insurer is large and his liabilities are small he can always take advantage of S. 9 of the Act and submit to an investigation by the Court and take back his deposit after depositing the small sum required to meet his liabilities. We are therefore of opinion that when S. 2D speaks of satisfaction or "provision otherwise" for the liabilities of insurance business which is closed it contemplates such satisfaction or "provision otherwise" over and above the deposit made under S. 7. It is not in dispute in this case that there are some liabilities still pending; it is also not in dispute that they are not satisfied and no provision has been made otherwise for them irrespective of the security deposit. This also appears to have been the position when the order was made in July 1957. In the circumstances the order is good and cannot be called in question by the Company.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]5. The contention of Shri Aggarwala is that S. 33 and S. 2D both refer to an insurer which is defined in S. 2 (9) as a person carrying on the business of insurance. He, therefore, contends that as soon as the insurer who was carrying on the business of insurance closes it down completely he no longer remains an insurer and the provisions of the Act do not apply to him. Therefore, according to him, when S. 33 provides for an order of investigation by the Central Government such an order can only be made in respect of a person who is actually carrying on the business of insurance and is thus an insurer and cannot be made against a person who was an insurer but has closed his business. Further, according to Mr. Aggarwala, S. 2D also speaks of an insurer and makes him subject to all the provisions of the Act with respect to any class of insurance business so long as his liabilities in respect of that class remain unsatisfied or not otherwise provided for an therefore S. 2D would only apply to those cases where insurance business is being carried on though some class of insurance business might have been closed. The contention therefore is that reading Ss. 33 and 2D together, no order under S. 33 can be made in case of an insurer who has completely closed his business of insurance.A perusal of a few sections of the Act will illustrate this and immediately show that the word "insurer" has been used in some sections to mean not merely a person actually carrying on business of insurance but also a person who intends to carry on the business of insurance but has not actually started it and also a person who was carrying on the business of insurance but has ceased to do so. For example, S. 3 (2) which deals with an application for registration which naturally has to be made before the business of insurance actually commences, lays down in cl. (b) that the application shall be accompanied by the name, address and the occupation, if any, of the directors where the insurer is a company incorporated under the Indian Companies Act. Here the word "insurer" has been used to indicate the company which is not actually carrying on the business of insurance but is intending to do so and is applying for registration. Further in S. 3 (2) (e) which also deals with an application for registration, it is provided that an insurer having his principal place of business or domicile outside India shall send along with the application a statement verified by an affidavit of the principal officer of the insurer setting forth various requirements. Here again, the word "insurer" has been used for an intending insurer, for the business of insurance would only begin after the registration certificate is granted on the application made under S. 3 (2). Then in S. 9 it is provided that where an insurer has ceased to carry on business, the court may on the application of the insurer order the return to him of the deposit made under S.This shows that though the insurer is not actually carrying on the business of insurance he is still termed an insurer and on his application the deposit may be refunded to him. Again S. 55 which deals with a situation arising out of the winding-up of an insurance company or the insolvency of any other insurer, provides that the value of the assets and liabilities of the insurer shall be ascertained in such manner and upon such basis as the liquidator or the receiver in insolvency thinks fit. The word "insurer" has thus been used in this section for a person or body corporate etc. which is not actually carrying on the business of insurance and has gone into liquidation or has become insolvent.Therefore, though the ordinary meaning to be given to the word "insurer" is as given in the definition clause (S. 2(9)) and refers to a person or body corporate etc. carrying on the business of insurance, the word may also refer in the context of certain provisions of the Act to any intending insurer or quondam insurer. The contention therefore that because the word "insurer" has been used in S. 33 or S. 2D those sections can only apply to insurers who are actually carrying on business cannot necessarily succeed, and we have to see whether in the context of these provisions an insurer will also include a person who was an insurer but has closed his business.Turning now to the second contention, the argument on behalf of the appellant is three-fold. In the first place it is urged that an order can only be made under S. 33 read with S. 2D when the Central Government is satisfied that the liabilities have not been satisfied or otherwise provided for, and that the order should show on the face of it that the Central Government had considered this aspect of the matter and had come to the conclusion that the liabilities remained unsatisfied or not otherwise provided for. Further there is nothing in the present order to show that the Central Government ever considered this aspect of the matter and was satisfied that the liabilities of the appellant-Company remained unsatisfied or not otherwise provided for. There is no doubt that the order is utterly silent on this point and it was only in his letter of October 15, 1957, that the Assistant Controller pointed out S. 2D of the Act and referred to this aspect of the matter.It seems to us only just and proper that when an order is being passed under S. 33 read with S. 2D of the Act it should show on the face of it that the Central Government was prima facie satisfied that the liabilities had remained unsatisfied or not otherwise provided for, for it is only when the liabilities have not been satisfied or otherwise provided for that an order under S. 33 read with S. 2D would be justified in the case of an insurer who has closed his business.We use the word "prima facie" advisedly, for it seems to have been suggested in the High Court that no order could be passed under S. 33 unless it was proved to the hilt that there were liabilities which remained unsatisfied or otherwise unprovided for.It is obvious that such proof would only be available after investigation in the affairs of the insurer.Therefore in order that S. 2D may be workable, all that is required under it is that the Central Govt. should be satisfied after such prima facie inquiry as it considers necessary that there are reasons to believe that the liabilities of the insurer who has closed his business remain unsatisfied or not otherwise provided for and in coming to this prima facie conclusion the Central Government may make enquiry from the insurer with respect to complaints that it may have received against him.But the fact that the order does not on the face of it show that the Central Government considered this aspect of the matter would not make it bad, if in subsequent proceedings taken to challenge it, it is shown that there were materials before the Central Government which would justify its coming to the prima facie conclusion that the liabilities had not been satisfied or otherwise provided for, and therefore an investigation into the affairs was called for.In the present case we find from the materials on the record that there were complaints before the Central Government from those who had claims against the company. Those complaints were apparently referred to the Company and it does not appear that the Company satisfied the Central Government that the complaints were unjustified. It was in this situation that the order for investigation was made in July 1957 after the Company had closed its insurance business. Further on the materials available on the record it does appear that even now there are claims pending to the tune of about one lac of rupees against the Company. So it cannot be said that there were no liabilities of the Company outstanding which were not satisfied or otherwise provided for when the order was made in July 1957. In the circumstances the order cannot be held to be bad because it does not show on the face of it that there were liabilities which had remained unsatisfied or not otherwise provided for.11. In the second place it is urged that there can be no question of satisfying or otherwise providing for liabilities unless the liabilities are ascertained and either admitted or proved. In other words the argument is that it is only those liabilities which are admitted by the insurer or which have been decreed against him and the decrees have become final which can be taken into account in deciding whether the liabilities have remained unsatisfied or not otherwise provided for. It is urged that only those liabilities which are ascertained and either undisputed or proved can be satisfied and that the same applies to their being otherwise provided for.It is true that only those liabilities, which are ascertained and either admitted or proved, can be satisfied; but is does not follow that "provision otherwise" must also be only of liabilities which are ascertained and either admitted or proved.If that were so a dishonest insurer who closes his business could always get out of the provisions of S. 33 read with S. 2D by repudiating all claims made against him and then saying that there are no liabilities which remained unsatisfied or otherwise unprovided for.There can be no doubt therefore if these provisions have to serve the purpose for which they were enacted, (namely, the protection of the interest of the policy-holders and the general public), the words "not otherwise provided for" in S. 2D must refer to liabilities in the nature of claims against the insurer whether the insurer admits them or not and whether a decree has been finally passed in respect of them or not.The intention of making this provision is S.2D is to ensure that probable claims arising out of the insurance business that is closed are provided for before the insurer who has closed his business can say that he is not governed by all the provisions of the Act. There can be no doubt therefore that when "provision otherwise" has to be made it must be with respect to probable claims also that are likely to arise out of the insurance business which has been closed. In the present case even the Company admits that there are probable claims to the tune of about rupees one lac still pending and in the circumstances until they are satisfied or it is shown that they have been provided for otherwise, all the provisions of the Act, including S. 33, will apply to the Company.12. The last argument in support of the second contention is that the liabilities have been otherwise provided for. It is said that the Company deposited Rs. 3,94,000/- as security under S. 7 of the Act, which is still available to pay off the liabilities of the Company and therefore when such liabilities do not appear to exceed that amount they have otherwise been provided for. The question thus raised is whether the Company is entitled to take into account the security deposit under S. 7 in order to show that the liabilities have been otherwise provided for. The contention on behalf of the Controller is that when the Act envisages "provision otherwise", this provision has to be over and above the security deposit made by the Company under S.It appears from S. 8 that this deposit is available for the discharge of liabilities arising out of policies of insurance issued by the insurer so long as any such liability remains unsatisfied. But even if a decree has been obtained by a policy-holder on the basis of a liability under policy he is not entitled to attach any part of this deposit until he shows that he has failed to realise the decree in any other way. Further it appears that S. 8 only contemplates policy-holders holding a decree attaching part of the security deposit in case they fail to realise their debt in any other way; it does not contemplate, for example, third parties who have decrees against an insurer, like the Company, (which in its motor insurance business indemnifies the policy-holders against third party risk upto a certain extent) doing so. Such third parties cannot under any circumstances attach any part of the deposit, for S. 8 only permits its attachment in the last resort by a policy-holders of the insurer in respect of a debt due upon a policy. But under S. 2D the decree of a third party in such a case would be the liability of the insurer in respect of his motor insurance business which could not be realised by attachment of any part of deposit under S. 7 Besides, even with respect to decrees of policy-holders the deposit could only be attached when all other ways of realizing the money have failed. In these circumstances it can hardly be said that the fact that this deposit is there is itself a "provision otherwise" to meet the liabilities of the insurer. The policy-holder cannot attach this deposit unless he first exhausts all other means. Even if he has got a decree and even if the insurer admits his claim and wants to pay it, he cannot do so out of the money in deposit under S. 7. As for the third parties who may have decrees against the insurer, they can never attach this deposit in view of the provisions of S. 8. It could not be the intention of the legislature when it was in effect exempting the insurer from all the provisions of the Act on his liabilities being otherwise provided for that such provision should include the security deposit under S. 7, when it has made it so difficult for a policy-holder to get his debt satisfied from that party could not in any way attach the deposit. In these circumstances we are of opinion that when S. 2D provides that the insurer shall be subject to all the provisions of the Act so long as his liabilities in India in respect of the business which is closed remain unsatisfied or not otherwise provided for, the satisfaction or "provision otherwise" does not refer to the deposit under S. 7 and has to be over and above that deposit. It is true that S. 9 provides that the insurer can take back the deposit after satisfying the Court that he has satisfied or otherwise provided for his liabilities. But this "provision otherwise" for the purposes of S.9 must obviously be other than the deposit itself. Further when the insurer wants to take back his deposit on making "provision otherwise" he will have to satisfy the Court that the "provision otherwise" has been fully made and the Court will be in a position to investigate into the matter. This, however, does not mean that if the insurer does not want to take advantage of S. 9 of the Act he can say without submitting to the terms of that section that he has made "provision otherwise", because the deposit which is made under S. 7 is more than all his liabilities of the insurance business that he has closed. It is urged that it is hard, for example, on an insurer who has a large deposit and whose liabilities are small that he should not be able to fall back on his deposit for the purposes of S. 2D. We do not however see any hardship in a case of this kind, for if it is a fact that the deposit of the insurer is large and his liabilities are small he can always take advantage of S. 9 of the Act and submit to an investigation by the Court and take back his deposit after depositing the small sum required to meet his liabilities. We are therefore of opinion that when S. 2D speaks of satisfaction or "provision otherwise" for the liabilities of insurance business which is closed it contemplates such satisfaction or "provision otherwise" over and above the deposit made under S. 7. It is not in dispute in this case that there are some liabilities still pending; it is also not in dispute that they are not satisfied and no provision has been made otherwise for them irrespective of the security deposit. This also appears to have been the position when the order was made in July 1957. In the circumstances the order is good and cannot be called in question by the Company.