{"id":158360,"date":"2007-09-05T00:00:00","date_gmt":"2007-09-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/v-balakrishna-reddiar-vs-branch-manager-on-5-september-2007"},"modified":"2017-08-30T23:04:10","modified_gmt":"2017-08-30T17:34:10","slug":"v-balakrishna-reddiar-vs-branch-manager-on-5-september-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/v-balakrishna-reddiar-vs-branch-manager-on-5-september-2007","title":{"rendered":"V.Balakrishna Reddiar vs Branch Manager on 5 September, 2007"},"content":{"rendered":"
Kerala High Court<\/div>\n
V.Balakrishna Reddiar vs Branch Manager on 5 September, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nOP No. 7702 of 2003(P)\n\n\n1. V.BALAKRISHNA REDDIAR,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. BRANCH MANAGER,\n                       ...       Respondent\n\n2. SENIOR DIVISIONAL MANAGER,\n\n3. ZONAL MANAGER,\n\n4. CHAIRMAN,\n\n                For Petitioner  :SRI.A.ANTONY\n\n                For Respondent  :SRI.R.S.KALKURA\n\nThe Hon'ble MR. Justice V.GIRI\n\n Dated :05\/09\/2007\n\n O R D E R\n\n\n                                   V. Giri, J.\n\n               ========================\n\n                           O.P.No.7702 of 2003\n\n               ========================\n\n\n           Dated this the        day of September, 2007.\n\n\n                                  JUDGMENT\n<\/pre>\n
      Petitioner,   who   was   an   agent   of   the   Life   Insurance<\/p>\n
Corporation,   from   1980   onwards,   challenges   the   termination   of<\/p>\n
his agency coupled with forfeiture of the renewal commission, as<\/p>\n
ordered   originally   by   the   first   respondent   and   affirmed   by   the<\/p>\n
Appellate Authority and Chairman.  The appointment of a person<\/p>\n
as agent of the Life Insurance Corporation and consequently  the<\/p>\n
termination   of   his   agency,   with   or   without   the   forfeiture   of   the<\/p>\n
renewal   commission     that   the   agent   is   entitled   to   is   effected<\/p>\n
under Statutory Regulations called as “Life Insurance Corporation<\/p>\n
of   India   (Agents)   Rules   1972   (hereinafter   referred   to   as   “the<\/p>\n
Rules”).  The said Rules are framed by the Central Government in<\/p>\n
exercise   of   the   powers   conferred   by   Section   49   of   the   Life<\/p>\n
Insurance Corporation of India Act, 1956. An interesting question<\/p>\n
as regards the scope of Rule 19 of the Rules in the context       of<\/p>\n
forfeiture       of   the   renewal    commission       that is due to  the<\/p>\n
OP 7702\/2003                          -: 2 :-<\/span><\/p>\n
agent has come up for consideration in this writ petition.<\/p>\n
      2.   Petitioner, who claims to have been appointed as agent<\/p>\n
of   the   Corporation   in   the   year   1980,   claims   that   he   was   doing<\/p>\n
well as an agent and had unblemished record of service for more<\/p>\n
than   20   years.     The   first   respondent   –   Branch   Manager   issued<\/p>\n
Ext.P1 notice to him requiring his explanation in the wake of the<\/p>\n
fact that as many as seven cheques were issued by the petitioner<\/p>\n
in   favour   of   the   Corporation.     Apparently,   the   cheques   were<\/p>\n
issued by the petitioner towards payment of renewal premium, in<\/p>\n
relation to different policies held by different policy holders.  It is<\/p>\n
further   seen  that   the   petitioner  as   an   agent   had   canvassed   the<\/p>\n
business in relation to the said policy and therefore considered it<\/p>\n
appropriate   to   collect   renewal   premium   from   the   policy   holders<\/p>\n
and  deposit   the   same   with  the   Corporation.    The   cheques  were<\/p>\n
dishonoured   for   insufficiency   of   funds   and   Ext.P1   came   to   be<\/p>\n
issued in the wake of the said fact.  Petitioner in Ext.P2, accepted<\/p>\n
his   mistake.     In   Ext.P2,   he   has   essentially   pleaded   for<\/p>\n
condonation   of   the   lapses  on   his   part.    The  fact   relating  to   the<\/p>\n
issuance   of   the   cheques   towards   payment   of   premium   by<\/p>\n
different policy holders is admitted by the petitioner.<\/p>\n
OP 7702\/2003                          -: 3 :-<\/span><\/p>\n
      3.     The   Corporation   decided   that   the   matter   merited   an<\/p>\n
enquiry.     Ext.P3   was   issued   under   Rule   16   of   the   Rules.     The<\/p>\n
second   respondent   –   competent   authority   noted   that   the<\/p>\n
petitioner had admitted in Ext.P2 that he had collected premia by<\/p>\n
cash from the policy holders, premium so collected was remitted<\/p>\n
at   the   branch   counter   by   cheques   issued   by   the   petitioner   and<\/p>\n
that   some   of   the   cheques   were   dishonoured.     The   following<\/p>\n
allegation forming part of Ext.P3 is significant:<\/p>\n
                “By your willful misconduct, you have acted in a<\/p>\n
      manner   prejudicial   to   the   interest   of   the   Corporation<\/p>\n
      and   detrimental   to   the   interest   of   the   policy  holders.<\/p>\n
      You   have   tarnished   the   image   of   the   Corporation   by<\/p>\n
      misappropriating   the   amount   and   have   committed<\/p>\n
      fraud.”\n<\/p><\/blockquote>\n
<\/blockquote>\n
The   second   respondent   then   intimated   that   it   is   proposed   to<\/p>\n
terminate the petitioner’s agency under Rule 16(1) with forfeiture<\/p>\n
of the commission under Rule 19(1) of the Rules.  Petitioner was<\/p>\n
given an opportunity to show cause against the proposal.  Ext.P4<\/p>\n
explanation submitted by the petitioner also admitted a mistake<\/p>\n
on his part.   Apparently, petitioner undertook the task of issuing<\/p>\n
his   cheques   for   payment   of   premium   due   from   different   policy<\/p>\n
OP 7702\/2003                          -: 4 :-<\/span><\/p>\n
holders.   According to him, the cheques were later cleared.   He<\/p>\n
assured that he will not repeat the mistake committed by him.<\/p>\n
      4.     The   explanation   was   found   to   be   inadequate   and   vide<\/p>\n
Ext.P5 order, the second respondent proceeded to terminate the<\/p>\n
agency of the petitioner.   The order further directed forfeiture of<\/p>\n
renewal commission under Rule 19 of the Rules.\n<\/p>\n<\/p>\n
      5.     An   appeal   before   the   Zonal   Manager   and   a   memorial<\/p>\n
before   the   Chairman   also   met   with   the   same   fate,   vide   Ext.P7<\/p>\n
and  Ext.P9   orders.    The  termination  of   the  agency  was  coupled<\/p>\n
with   forfeiture of the renewal commission.   Petitioner therefore<\/p>\n
challenges   Exts.P5,   P7   and   P9   orders.     Petitioner   also   seeks   a<\/p>\n
direction to the respondents to pay the renewal commission due<\/p>\n
to him as an LIC agent.\n<\/p>\n<\/p>\n
      6.     A   counter   affidavit   has   been   filed   on   behalf   of   the<\/p>\n
respondents.     It   is   contended   that   the   petitioner   had   issued<\/p>\n
cheques apparently for discharging  premium payable by different<\/p>\n
policy holders. Petitioner, as an agent of the Corporation, has no<\/p>\n
business to issue cheques from his bank account for discharging<\/p>\n
premium   payable   by   the   policy   holders.   There   were   complaints<\/p>\n
against   the   petitioner.     Apparently,   petitioner   had   collected<\/p>\n
OP 7702\/2003                           -: 5 :-<\/span><\/p>\n
premia from the policy holders.  There is reason to think that he<\/p>\n
had misappropriated the same.   There was no obligation on the<\/p>\n
part   of   the   petitioner   to   issue   cheques   from   his   bank   account.<\/p>\n
His job, if at all, could only be to pursuade  the policy holders to<\/p>\n
pay the premium in time. “The act and conduct of the petitioner<\/p>\n
was   such   that   it   has   created   in   the   mind   of   the   respondent   a<\/p>\n
reasonable   apprehension   as   to   the   deleterious   effect   of   the<\/p>\n
continuance   of   the   agency   on   other   agents   of   the   respondents.<\/p>\n
The   act   and   conduct   of   the   petitioner   also   raised   considerable<\/p>\n
doubt   with   regard   to   the   faithfulness   of   the   petitioner.”     It   is<\/p>\n
further   contended   that   the   issue   of   his   own   cheques   by   the<\/p>\n
petitioner, for cash collected from the policy holders tantamounts<\/p>\n
to   willful   and   deliberate   fraud.     Apparently,   policies   of   two<\/p>\n
customers lapsed and it tarnished the image of the Corporation.<\/p>\n
      7. Though Exts.R1(c) and and R1(d) are referred to in the<\/p>\n
counter   affidavit   as     complaints   against   the   petitioner   received<\/p>\n
from the customers, the same are revealed only to be copies of<\/p>\n
the   proceedings   of   the   Senior   Divisional   Manager,   inter   alia<\/p>\n
relating to the termination of the agency of the petitioner.   The<\/p>\n
said  proceedings already form  part of the  record in  the Original<\/p>\n
OP 7702\/2003                            -: 6 :-<\/span><\/p>\n
Petition.\n<\/p>\n<\/p>\n
      8.   I heard learned counsel for the petitioner Sri.A. Antony<\/p>\n
(Jr) and Sri.R.S.Kalkura on behalf of the Corporation.<\/p>\n
      9.    Essentially,  two   issues   arise   for   consideration.     First   is<\/p>\n
whether termination of the agency is legal and proper.  Second is<\/p>\n
whether the direction for forfeiture of the renewal commission is<\/p>\n
justified.\n<\/p>\n<\/p>\n
      10.     In   so   far   as   the   first   aspect   is   concerned,   I   am   in<\/p>\n
complete   agreement  with  the  contentions   raised  by  Sri.Kalkura.<\/p>\n
Learned   counsel   for   the   Corporation   contended   that   the   orders<\/p>\n
terminating   the   agency   of   the   petitioner   are   inconsonance   with<\/p>\n
the   statutory   Rules   and   really   do   not   merit   any   interference   at<\/p>\n
the hands of this Court.   Petitioner admitted the issuance of the<\/p>\n
cheques,   apparently, towards payment of premium by different<\/p>\n
policy holders. The same constitutes a clear lapse on the part of<\/p>\n
the petitioner.   An agent of the Corporation appointed under the<\/p>\n
Rules   has   no   business   to   collect   the   premia   to   be   paid   by<\/p>\n
different policy holders, and then proceed to issue cheques from<\/p>\n
his own account for payment of such premium. The contract   of<\/p>\n
insurance   is   between   the   Corporation   and   the   policy   holders.<\/p>\n
OP 7702\/2003                             -: 7 :-<\/span><\/p>\n
Petitioner   was   an  agent   of   the  Corporation.    He  could   not   have<\/p>\n
acted  as an agent of the policy holders.  The long experience the<\/p>\n
petitioner had acquired as an agent of the Corporation from the<\/p>\n
year 1980 onwards is not a fact which in any manner dilutes the<\/p>\n
gravity of an act of indiscretion on the part of the petitioner.  An<\/p>\n
inexperienced agent could possibly have been excused for an act<\/p>\n
of indiscretion resulting from a display of enthusiasm, to canvass<\/p>\n
more and more business for the Corporation.     A seasoned hand<\/p>\n
can   hardly   claim   such   privilege.   At   any   rate,   it   is   perfectly<\/p>\n
legitimate on the part of the Corporation to take serious note of<\/p>\n
such   lapses   and   decide   to   terminate   the   agency.     I   find   hardly<\/p>\n
any   reason   to   interfere   with   Exts.P5,   P7   and   P9   in   so   far   as   it<\/p>\n
relates   to   the   termination   of   the   agency  of   the  petitioner.     The<\/p>\n
orders are issued in consonance with the statutory Rules.   There<\/p>\n
is no violation of the principles of natural justice.  I reject the first<\/p>\n
contention raised by the petitioner in this regard.<\/p>\n
       11.  Learned counsel for the petitioner then contended that<\/p>\n
assuming   that   the   termination   of   the   agency   is   proper,   the<\/p>\n
forfeiture of  the  renewal  commission,  is  at   any  rate,  illegal  and<\/p>\n
OP 7702\/2003                          -: 8 :-<\/span><\/p>\n
unjustified.  It is contended that the Rules contemplate forfeiture<\/p>\n
of   the  renewal commission  otherwise payable to   the agent  only<\/p>\n
under   exceptional   circumstances.     It   is   only   when   there   is<\/p>\n
fraudulent   conduct   on   the   part   of   the   agent   that   there   can   be<\/p>\n
forfeiture.     Sri.Kalkura   on   the   other   hand   contended   that   in<\/p>\n
Ext.P3 show cause notice, the Corporation had made it clear that<\/p>\n
the   act   of   issuing   a   cheque   for   the   discharge   of   the   premium<\/p>\n
payable   by   different   policy   holders   amounts   to   fraudulent<\/p>\n
conduct.  Such fraud, as assessed by the Corporation, on the part<\/p>\n
of   the   agent   concerned   enables   the   Corporation   not   only   to<\/p>\n
terminate   the   agency,   but   also   direct   forfeiture   of   the<\/p>\n
commission.\n<\/p>\n<\/p>\n
      12.   Statutory   Rules   govern   appointment   of   an   agent,<\/p>\n
conditions   of   his   engagement\/agency   and   the   circumstances<\/p>\n
under   which   such   agency   could   be   terminated.     The   Rules   also<\/p>\n
provide   for   invoking   appropriate   remedy  and   final   consideration<\/p>\n
by   the   Chairman   of   the   Corporation.     The   above   Rules   are<\/p>\n
formulated by the Central Government.   Rule 3(b) defines agent,<\/p>\n
who   was   appointed   under   Regulation   4.   Rule   4   of   the   Rules<\/p>\n
(Rules   or   Regulations   as   it   is   referred   to   in   certain   areas)<\/p>\n
OP 7702\/2003                          -: 9 :-<\/span><\/p>\n
provides   that   an   agent   may   be   appointed   by   a   competent<\/p>\n
authority after interview of the candidates.   Rule 5 of the Rules<\/p>\n
prescribes     qualifications   of   an   agent.     A   valid   licence   under<\/p>\n
Section   42   of   the   Insurance   Act   is   one   of   the   qualifications<\/p>\n
prescribed.   Rule 6 of the Rules prescribes   training and tests to<\/p>\n
be undergone by an agent and Rule 7 of the Rules prescribes six<\/p>\n
months   probation   from   the   date   of   appointment.     Functions   of<\/p>\n
agents   are   prescribed   under  Rule  8   of   the   Rules.     It   prescribes<\/p>\n
the new life insurance business and it requires an agent to take<\/p>\n
into   consideration   the   needs   of   the   proposers   for   life   insurance<\/p>\n
and the capacity to pay premium.   Rule 9 of the Rules provides<\/p>\n
minimum amount of business to be secured by an agent.  Rule 10<\/p>\n
of the Rules provides payment of commission to an agent, which<\/p>\n
is described as compensation and remuneration due to an agent<\/p>\n
for   the   discharge   of   all   his   functions.     Commission   includes<\/p>\n
renewal premium received during the continuance of his agency.<\/p>\n
Rule   11   of   the   Rules   provides   gratuity   and   term   insurance<\/p>\n
benefits admissible in the case of an agent.  Rule 12 of the Rules<\/p>\n
provides that the Corporation shall have a lien and charge on all<\/p>\n
moneys payable to an agent or his heirs for recovery of all debts<\/p>\n
OP 7702\/2003                         -: 10 :-<\/span><\/p>\n
due from him to the Corporation.   Rule 13 of the Rules provides<\/p>\n
termination   of   agency   in  cases   where  an  agent   fails   to   bring  in<\/p>\n
the business required under Regulation 9.   Rule 14 of the Rules<\/p>\n
provides   for   termination   of   agency   in   circumstances   where   the<\/p>\n
licence of an agent  issued under Section 42 of the Insurance Act<\/p>\n
is cancelled or is not renewed. Rules 15 and 16 of the Rules are<\/p>\n
crucial.  Therefore, they are extracted in their entirety.<\/p>\n
            “15.Termination   of   agency   on   account   of<\/p>\n
     certain disqualifications:\n<\/p><\/blockquote>\n
            If an agent:\n<\/p><\/blockquote>\n
            (a) is found to be of unsound mind by a court of<\/p>\n
     competent jurisdiction;\n<\/p><\/blockquote>\n
            (b)   is   found   to   be   guilty   of   criminal<\/p>\n
     misappropriation   or   criminal   breach   of   trust   or<\/p>\n
     cheating or forgery or an abatement of  or attempt to<\/p>\n
     commit   any   such   offence   by   a   court   of   competent<\/p>\n
     jurisdiction;\n<\/p><\/blockquote>\n
            ) in any judicial proceeding, has been found to<\/p>\n
     have   knowingly   participated   in   or   connived   at   any<\/p>\n
     fraud,   dishonesty   or   misrepresentation   against   the<\/p>\n
     Corporation or  any of  its subsidiaries or  against any<\/p>\n
     person having official dealings with the Corporation or<\/p>\n
     any of its subsidiaries,<\/p>\n
     his   appointment   shall   be   liable   to   be   terminated<\/p>\n
OP 7702\/2003                            -: 11 :-<\/span><\/p>\n
     without   notice   and   the   competent   authority   shall<\/p>\n
     forthwith terminate his appointment.<\/p>\n<\/blockquote>\n
              16.   Termination   of   agency   for   certain<\/p>\n
     lapses:\n<\/p><\/blockquote>\n
              (1)   The   competent   authority   may,   by   order,<\/p>\n
     determine the appointment of an agent,<\/p>\n<\/blockquote>\n
              (a) if he has failed to discharge his functions, as<\/p>\n
     set   out   in   regulation   8,   to   the   satisfaction   of   the<\/p>\n
     competent authority;\n<\/p><\/blockquote>\n
              (b)   if   he   acts   in   a   manner   prejudicial   to   the<\/p>\n
     interests of the Corporation or to the interests of its<\/p>\n
     policyholders;\n<\/p><\/blockquote>\n
              )   if   evidence   comes   to   its   knowledge   to   show<\/p>\n
     that he has been allowing or offering to allow rebate<\/p>\n
     of  the whole  or  any  part of the commission  payable<\/p>\n
     to him;\n<\/p><\/blockquote>\n
              (d) if it is found that any averment contained in<\/p>\n
     his   agency  application  or   in   any  report   furnished  by<\/p>\n
     him   as   an   agent   in   respect   of   any   proposal   is   not<\/p>\n
     true;\n<\/p><\/blockquote>\n
              (e)   if   he   becomes   physically   or   mentally<\/p>\n
     incapacitated   for   carrying   out   his   functions   as   an<\/p>\n
     agent;\n<\/p><\/blockquote>\n
              (f)   if   he   being   an   absorbed   agent,   on   being<\/p>\n
     called   upon   to   do   so,   fails   to   undergo   the   specified<\/p>\n
     training   or   to   pass   the   specified   tests,   within   three<\/p>\n
OP 7702\/2003                          -: 12 :-<\/span><\/p>\n
     years from the date on which he is so called upon:<\/p>\n<\/blockquote>\n
            Provided   that   the   agent   shall   be   given   a<\/p>\n
     reasonable   opportunity   to   show   cause   against   such<\/p>\n
     termination.\n<\/p><\/blockquote>\n
            (2) Every order of termination made under sub-<\/p>\n
     regulation   (1)   shall   be  in  writing  and  communicated<\/p>\n
     to the agent concerned.\n<\/p><\/blockquote>\n
            (3) Where the competent authority proposes to<\/p>\n
     take   action   under   Sub-regulation   (1),   it   may   direct<\/p>\n
     the agent not to solicit or procure new life insurance<\/p>\n
     business   until   he   is   permitted   by   the   competent<\/p>\n
     authority to do so.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
Rule   15   of   the  Rules   therefore  contemplates     termination  of   an<\/p>\n
agency on what is described as a disqualification.  Significantly an<\/p>\n
agency   becomes   liable   to   be   terminated   for   the   reason   of   the<\/p>\n
agent incurring a disqualification in terms of Rule 15(a)(b) or ).<\/p>\n
It   enables   the   Corporation   to   dispense   with   an   enquiry   prior   to<\/p>\n
the termination.   That seems to be a good reason for dispensing<\/p>\n
with an enquiry in cases covered by Rule 15 of the Rules.   The<\/p>\n
disqualification which is  treated as  warranting termination  of  an<\/p>\n
agency without notice or enquiry, for the purpose of Rule 15 of<\/p>\n
OP 7702\/2003                          -: 13 :-<\/span><\/p>\n
the Rules seems to be the outcome of a proceeding in a court of<\/p>\n
competent   jurisdiction.     If   an   agent   is   found   to   be   an   unsound<\/p>\n
mind   by   a   competent   jurisdiction,   his   agency   is   liable   to   be<\/p>\n
terminated.     If   an   agent   is   found   to   be   guilty   of   criminal<\/p>\n
misappropriation or the offences mentioned in Rule 15 (b) of the<\/p>\n
Rules,   by   a   court   of   competent   jurisdiction,   the   same   result<\/p>\n
follows.  If an agent is found to have knowingly participated in or<\/p>\n
connived   at   any   fraud,   dishonesty   or   misrepresentation   against<\/p>\n
the Corporation, again, what follows is termination of the agency<\/p>\n
without notice.   Even the case last mentioned above, the finding<\/p>\n
as regards fraud having been purported by the agency concerned<\/p>\n
against the Corporation or any of its subsidiaries must emanate<\/p>\n
from a judicial proceeding.   This seems to be indispensable from<\/p>\n
Rule 15(c) of the Rules.   Obviously, termination of an agency in<\/p>\n
the circumstances covered by Rule 15(a)(b) and ) of the Rules<\/p>\n
seems   to   be     provided   as   a   statutory   consequence,   resultant<\/p>\n
upon the agent either suffering an adverse order from a court of<\/p>\n
competent   jurisdiction   or   in   certain   exceptional   circumstances<\/p>\n
being   declared   as   a   person   of   unsound   mind   by   a   court   of<\/p>\n
competent jurisdiction.\n<\/p>\n
\nOP 7702\/2003                         -: 14 :-<\/span><\/p>\n
      13. Rule 16 of the Rules extracted above seems to deal with<\/p>\n
the   cases   other   than   those   comprehended   by   Rule   15   of   the<\/p>\n
Rules.   Failure to discharge function in the manner prejudicial to<\/p>\n
the   interest   of   the   Corporation,   failure   to   undergo   satisfactory<\/p>\n
training or pass specified test, allowing or offering to allow rebate<\/p>\n
of the whole or any part of the commission payable to him are all<\/p>\n
considered as a sufficient cause of commission and omission on<\/p>\n
the part of the agent warranting termination of his agency.<\/p>\n
      14. The crucial  provision which comes up for consideration<\/p>\n
in the context of the termination of an agency, as in the present<\/p>\n
case   is   Rule   19   of   the   Rules   which   again   being   relevant   is<\/p>\n
extracted below.\n<\/p>\n<\/p>\n
           “Payment of commission on discontinuance of<\/p>\n
     agency:\n<\/p><\/blockquote>\n
           (1) In the event of termination of the appointment<\/p>\n
     of   an   agent,   except   for   fraud,   the   commission   on   the<\/p>\n
     premiums received in respect of the business secured by<\/p>\n
     him shall be paid to him if such agent:<\/p>\n<\/blockquote>\n
           (a)   has   continually   worked   for   at   least   5   years<\/p>\n
     since his appointment and policies assuring a total sum<\/p>\n
     of not less than Rs.2 lakhs effected through him were in<\/p>\n
     full force on a date one year before his ceasing to act as<\/p>\n
OP 7702\/2003                          -: 15 :-<\/span><\/p>\n
     such agent; or<\/p>\n<\/blockquote>\n
            (b)   has   continually   worked   was   an   agent   for   at<\/p>\n
     least 10 years since is appointment; or<\/p>\n
            )   being   an   agent   whose   appointment   has   been<\/p>\n
     terminated   under   clause   (e)   of   sub-regulation   (1)   of<\/p>\n
     regulation 16 has continually worked as an agent for at<\/p>\n
     least   two   years   from   the   date   of   his   appointment   and<\/p>\n
     policies assuring a total sum of not less than Rs.1 lakh<\/p>\n
     effected   through   him   were   in   full   force   on   the   date<\/p>\n
     immediately prior to such termination:”<\/p>\n<\/blockquote>\n
Apparently, the statutory mandate contained in Rule 19(1) of the<\/p>\n
Rules with regard to payment of commission due to an agent in<\/p>\n
the   case   of   termination   of   his   appointment   seems   to   be<\/p>\n
expressed   in   positive   terms.         An   agent   becomes   entitled   to<\/p>\n
commission   on   the   premium   received   by   the   Corporation   in<\/p>\n
respect  of   the  business  secured  by  him   subject   to   fulfillment   of<\/p>\n
the  requirements   mentioned  in  Rule  19(1)(a)(b)(c).      Exception<\/p>\n
seems   to   be   cases   where   the   appointment   of   an   agency   is<\/p>\n
terminated for fraud.  It is  in this area where an interpretation of<\/p>\n
the Rules seems to be required.  The question that was posed for<\/p>\n
consideration   is   whether   “fraud”   as   occurring   in   Rule   19   of   the<\/p>\n
Rules   would   comprehend   cases   where   the   Corporation   alleges<\/p>\n
OP 7702\/2003                          -: 16 :-<\/span><\/p>\n
and finds that the agent was guilty of fraudulent conduct or fraud<\/p>\n
having tainted  his actions of commission or omission or whether<\/p>\n
fraud as occurring in Rule 19(1) of the Rules is confined to cases<\/p>\n
which are comprehended by Rule 15(1) of the Rules wherein, in<\/p>\n
any  judicial   proceeding  the   agent   has   been   found   to   have<\/p>\n
knowingly   participated   in   or   connived   at   any   fraud.     If   the<\/p>\n
Corporation   is   entitled   to   forfeit   the   commission   payable   to   an<\/p>\n
agent whose appointment has been terminated on the ground of<\/p>\n
fraud,   as   found   in   the   orders   passed   by   the   officers   of   the<\/p>\n
Corporation, then  Sri.Kalkura’s submission that the requirements<\/p>\n
of the statute is satisfied in the present case would deserve to be<\/p>\n
accepted in such circumstances.   But I am unable to accept the<\/p>\n
submission.\n<\/p>\n<\/p>\n
      15.   As   regards   the   liability   of   the   Corporation   to   pay   the<\/p>\n
commission due to an agent on the premium received in respect<\/p>\n
of   the   business   secured   by   him,   the   exception   is   confined   to<\/p>\n
cases   of   fraud   as   the   term   occurs   in   the   statute   in   question.<\/p>\n
Then it seems to be quite logical to confine such cases of fraud<\/p>\n
having   been   perpetrated   by   the   agent,   and   so   found   in   any<\/p>\n
judicial   proceeding   involving   the   Corporation   or   any   of   its<\/p>\n
OP 7702\/2003                         -: 17 :-<\/span><\/p>\n
subsidiaries or against any person having official dealing with the<\/p>\n
Corporation (Rule 15(c) of the Rules).   It is to be noted that the<\/p>\n
Rules   in   question,   which   are   obviously   statutory   in   character<\/p>\n
define the method of recruitment   and the terms and conditions<\/p>\n
of appointment of an agent.   An agent of the Corporation is not<\/p>\n
entitled   to   any   salary.     He   is   entitled   to   only   such   benefits<\/p>\n
payable to him by way of commission in terms of Rule 10 of the<\/p>\n
Rules and gratuity and term insurance benefits  due to him under<\/p>\n
Rule 11 of the Rules.    Thus, where  the statute provides  for  the<\/p>\n
mode of termination and the statute itself, couched in a positive<\/p>\n
way, mandates payment of commission on the premium received<\/p>\n
in respect of the business secured by the agent, in the event of<\/p>\n
termination   of   his   appointment   as   an   agent,     the   statutory<\/p>\n
consequences will have to be given effect to.  Termination of the<\/p>\n
appointment of an agent  will have to be  resorted to only under<\/p>\n
the circumstances provided  under Rules 13 to to 18 of the Rules.<\/p>\n
Obviously, they deal with different circumstances.  Rule 15 of the<\/p>\n
Rules contemplates termination  of  agency on account  of certain<\/p>\n
disqualifications incurred by the agent concerned and Rule 16 of<\/p>\n
the Rules deals with termination of agency for certain lapses on<\/p>\n
OP 7702\/2003                           -: 18 :-<\/span><\/p>\n
the part of the agent.  The Rule Making Authority seems to have<\/p>\n
kept in its mind different situations warranting application of Rule<\/p>\n
15 or Rule 16 of the Rules, as the case may be.  The term “fraud”<\/p>\n
or   “fraudulent”   does   not   find  a  place   in  Rule   16.  “Fraud”   either<\/p>\n
resultant upon act of commission or omission on the part of the<\/p>\n
agent is contemplated and provided for only under Rule 15(c) of<\/p>\n
the   Rules.   If   that   be   so,   it   is   only   where   the   termination   of<\/p>\n
appointment   of   an   agent   is   resultant   upon   Rule   15(c)   of   the<\/p>\n
Rules,   that   the   Corporation   is   given   liberty   to   forfeit   the<\/p>\n
commission payable to an agent.   Of course, such forfeiture   as<\/p>\n
provided under Rule 19(1) of the Rules need not necessarily be<\/p>\n
resultant   upon   proof   of   any   monetary   loss   suffered   by   the<\/p>\n
Corporation.If in any judicial proceeding,it is found that the agent<\/p>\n
concerned has knowingly participated in or connived at any fraud,<\/p>\n
against  the Corporation or any of its subsidiaries or against any<\/p>\n
person having official dealings with the Corporation or any of its<\/p>\n
subsidiaries,   then   termination   of   agency   can   be   followed   by   or<\/p>\n
accompanied by forfeiture of the commission in terms of Rule 19<\/p>\n
(1).But the crucial aspect is that the finding of fraud must be in<\/p>\n
any  judicial   proceeding  as   provided  for   under  Rule  15(c)   of   the<\/p>\n
OP 7702\/2003                          -: 19 :-<\/span><\/p>\n
Rules.  In other words, it is only if the termination of the agency<\/p>\n
is under Rule 15(c) of the Rules that the Corporation is entitled to<\/p>\n
forfeit   the   commission   payable   to   the   agent.     Subject   to   this<\/p>\n
exception,   if   the   agent’s   appointment   stands   terminated     he   is<\/p>\n
entitled to receive the commission payable to him in terms of the<\/p>\n
Rules.\n<\/p>\n<\/p>\n
      16.   There   is   yet   another   factor   which   persuades   me   to<\/p>\n
arrive at the same  conclusion.  Money is payable to an agent by<\/p>\n
way of commission for the business secured by him.   No person<\/p>\n
shall be deprived of his property except in accordance with   law.<\/p>\n
No doubt, right to property is no longer a fundamental right.  But<\/p>\n
nevertheless, the right to retain a property and receive the same<\/p>\n
and   protect   it   are     valuable  rights   in   the   hands   of   a   citizen.<\/p>\n
Deprivation   of   such   right   can   only   be   in   accordance   with   law,<\/p>\n
which   in   the   given   circumstances   would   be   the   statutory   Rules<\/p>\n
defining the method of appointment and provide for conditions of<\/p>\n
service   of   the   agents.     The   Rules   provide   for   payment   of<\/p>\n
commission to an agent whose appointment has been terminated<\/p>\n
except in a case, which is also specifically provided for under the<\/p>\n
Rules.     In   such   circumstances,   the   forfeiture   must   also<\/p>\n
OP 7702\/2003                          -: 20 :-<\/span><\/p>\n
be   strictly   in   accordance   with   the   Rules.         Where   fraud   is<\/p>\n
considered   as   sufficient   to   terminate   the   appointment   of   an<\/p>\n
agent, then the circumstances so provided under the Rules alone<\/p>\n
can   form   the   basis   of   a   legitimate   action   on   the   part   of   the<\/p>\n
Corporation to forfeit the commission payable to an agent.<\/p>\n
      17. In short, the upshot of the discussion would be that in<\/p>\n
cases where fraudulent conduct on the part of the agent has been<\/p>\n
found in a judicial proceeding, the Corporation would be entitled<\/p>\n
to terminate the agency under Rule 15(c) of the Rules and also<\/p>\n
forfeit   the   commission   payable   to   him   under   Rule   19(1)   of   the<\/p>\n
Rules.     The   allegation   of   fraudulent   conduct   on   the   part   of   the<\/p>\n
agent and finding in that regard by the officer of the Corporation,<\/p>\n
who   exercises   the   powers   under   the   Rules   in   question   is   not   a<\/p>\n
substitute for the same; nor is it otherwise sufficient to justify the<\/p>\n
forfeiture of the commission payable to an agent.<\/p>\n
      18.   Learned   counsel   for   the   Corporation   relied   on   the<\/p>\n
judgment   of   a   Division   Bench   of   this   Court   in   W.A.No.1396   of<\/p>\n
2004,     judgment   of   the   Delhi   High   Court   reported   in  Mrs.<\/p>\n
Chandra   Prabha   Dogra  v.  LIC   of   India  –   A.I.R.   2004   Delhi<\/p>\n
OP 7702\/2003                        -: 21 :-<\/span><\/p>\n
291, as also the judgment of a Division Bench of the Madras High<\/p>\n
Court   dated   23.2.2004   in   W.A.No.239   of   2003(A.   Seshadri  v.<\/p>\n
The   Chairman   &   Managing   Director,   LIC   of   India).     The<\/p>\n
Division   Bench  of  this   Court  in W.A.No.1396  of  2004  posed  the<\/p>\n
question for consideration in the following manner:<\/p>\n
                “From   a   perusal   of   regulation   19   reproduced<\/p>\n
         above   it   is   clear   that   in   the   termination   of<\/p>\n
         appointment   of   an   agent,   except   for   fraud,   the<\/p>\n
         commission on the premiums received in respect of<\/p>\n
         the business  secured by  him  shall  be paid   to  him.<\/p>\n
         If the agent thus might indulge in a fraudulent act,<\/p>\n
         commission on the premiums can be forfeited.  The<\/p>\n
         only question thus arises in the present case is as<\/p>\n
         to   whether   the   misconduct   alleged   against   the<\/p>\n
         petitioner was fraudulent or not.   In so far as, the<\/p>\n
         finding   of   the   learned   single   Judge   that   the<\/p>\n
         Corporation   had   no   case   that   the   petitioner   had<\/p>\n
         committed   any   fraud   is   concerned,   the   same   is<\/p>\n
         contrary to the records of the case.”<\/p>\n<\/blockquote>\n
The Bench essentially considered the question as to whether the<\/p>\n
allegation of fraud was actually raised in the same case and was<\/p>\n
duly   communicated   to   the   party.     The   case   of   the   Corporation<\/p>\n
that it was so communicated was accepted by the Bench on facts.<\/p>\n
OP 7702\/2003                          -: 22 :-<\/span><\/p>\n
The orders which were impugned in the writ petition from which<\/p>\n
the Bench was considering the appeal contained findings by the<\/p>\n
appropriate   authorities   to   the   effect   that   there   was   fraudulent<\/p>\n
conduct   on   the   part   of   the   delinquent   officer.     Learned   single<\/p>\n
Judge,   in   the  judgment  leading   to   the   appeal   before  the   Bench<\/p>\n
interfered   with   the   orders   forfeiting   the   renewal   commission   on<\/p>\n
the ground that the Corporation had no case that the petitioner in<\/p>\n
the   said   case   has   committed   any   fraud.     The   Bench   disagreed<\/p>\n
with the learned single Judge in that respect.  It is therefore that<\/p>\n
W.A.No.1396   of   2004   filed   by   the   Corporation   came   to   be<\/p>\n
allowed.\n<\/p>\n<\/p>\n
      19.   The question as to whether there can be forfeiture of<\/p>\n
the   commission   payable   to   an   agent,   under   Rule   19(1)   of   the<\/p>\n
Rules, on the ground of fraud even  in the absence of a finding of<\/p>\n
fraudulent   conduct   on   the   part   of   the   delinquent   official   in   any<\/p>\n
judicial   proceeding   as   contemplated   by   Rule   15(c)   of   the   Rules<\/p>\n
did not come up for consideration by the Bench.  Apparently, the<\/p>\n
said   issue   was   not   urged   and   therefore   not   considered.     The<\/p>\n
decision   of   the   Bench   cited   by   Sri.Kalkura   turned   on   the   facts<\/p>\n
and   the   issue   which   is   being   considered   in   the<\/p>\n
OP 7702\/2003                           -: 23 :-<\/span><\/p>\n
present  case involving  an interpretation of  Rule 19 of the Rules<\/p>\n
was   not   posed   for   consideration   before   their   Lordships   in   the<\/p>\n
said case.\n<\/p>\n<\/p>\n
      20.    Sri.  Kalkura  then  relied  on the  judgment of  the Delhi<\/p>\n
High   Court,   referred   supra,   reported   in  Mrs.   Chandra   Prabha<\/p>\n
Dogra  v.  LIC   of   India  –   A.I.R.   2004   Delhi   291.     The   said<\/p>\n
judgment supports the stand taken by him.  Learned Judge of the<\/p>\n
Delhi High Court found on a composite reading of the Regulations<\/p>\n
that   Regulation   15   merely   sets   out   the   disabilities   upon   the<\/p>\n
attainment   of   which   the   agency   was   liable   to   be   terminated.<\/p>\n
Learned   Judge   found   that   a   fraudulent   act   outside   the   judicial<\/p>\n
proceeding   would   also   be   actionable   under   Rule   16(b)   and   it<\/p>\n
would be open for the Corporation to treat the case as a case of<\/p>\n
fraud for the purpose of Regulation 19.  With great respect, I am<\/p>\n
afraid,   I   am   unable   to   agree   with   the   said   proposition.     In   my<\/p>\n
opinion, fraud as a basis for forfeiting the commission payable to<\/p>\n
an agent in terms of Rule 19 of the Rules should have been found<\/p>\n
as a fact against an agent in a judicial proceeding, in the manner<\/p>\n
indicated   in   Rule   15(c)   of   the   Rules.     The   termination   of   the<\/p>\n
agency should have been under Rule 15(c) of the Rules, on the<\/p>\n
OP 7702\/2003                          -: 24 :-<\/span><\/p>\n
ground   of   fraud,   to   justify   the   forfeiture   of   the   commission<\/p>\n
otherwise payable to the agent in terms of Rule 19 of the Rules.<\/p>\n
      21.     Sri.   Kalkura     then   referred   to   the   judgment   of   the<\/p>\n
Bench   of   the   Madras   High   Court   in   (A.Seshadri  v.  The<\/p>\n
Chairman & Managing Director, LIC of India) W.A.No.239 of<\/p>\n
2003.     I   have   gone   through   the   said   judgment   as   well   as   the<\/p>\n
judgment   of   the   learned   single   Judge  affirmed   by   the     Division<\/p>\n
Bench.     The case turns purely on facts.   The said judgment has<\/p>\n
no application to the present case.\n<\/p>\n<\/p>\n
      22.     Learned   counsel   for   the   petitioner   contends   very<\/p>\n
vehemently   that   the   forfeiture   of   the   renewal   commission   was<\/p>\n
illegal   and   the   Corporation   ought   to   be   directed   to   pay   to   the<\/p>\n
petitioner   the   agency   commission   he   is   otherwise   entitled   to.<\/p>\n
There is a dispute  between the petitioner and the respondent as<\/p>\n
to   what   would   be   the   commission   that   is   payable.     Petitioner<\/p>\n
contends   that   the   commission   relating   to   the   premium   payable<\/p>\n
in relation to all policies secured by the petitioner would be due.<\/p>\n
The Corporation maintains that at any rate, only such premia due<\/p>\n
prior to the termination of the agency would become payable.   I<\/p>\n
do not think   that it is necessary to go into that question in the<\/p>\n
OP 7702\/2003                            -: 25 :-<\/span><\/p>\n
light   of   the   directions   which   I   propose   to   issue.     I   hasten     to<\/p>\n
make it clear that the entitlement of an agent for commission in<\/p>\n
terms of Rule 19 of the Rules cannot be in derogation of the right<\/p>\n
of the Corporation to exercise its lien in terms of Rule 12 of the<\/p>\n
Rules,   which   provides   that   the   Corporation   shall   have   the   first<\/p>\n
lien and charge on all moneys payable to an agent and may apply<\/p>\n
any   such   moneys   directly   towards   realisation   of   any   debts   due<\/p>\n
from   an   agent.     Thus,   if   any   loss   has   been   caused   to   the<\/p>\n
Corporation   by   the   petitioner,   then   it   is   obviously   open   to   the<\/p>\n
Corporation  to  compensate  itself  for such loss.   A settlement of<\/p>\n
accounts cannot be undertaken in the present case.<\/p>\n
       23.     In   the   result,   the   Original   Petition   is   allowed   in   part.<\/p>\n
Exts.P5,   P7   and   P9   are   quashed   to   the   extent   to   which   they<\/p>\n
provide   that   the   renewal   commission   payable   to   the   petitioner<\/p>\n
shall be forfeited.  The second respondent is directed to compute<\/p>\n
the agency commission payable to the petitioner in terms of the<\/p>\n
Rules.     If   any   amounts   are   due   to   the   Corporation   from   the<\/p>\n
petitioner   as   an   agent,   then   it   is   open   to   the   Corporation   to<\/p>\n
exercise   its   lien   in   terms   of   Rule   12   of   the   Rules.     Once   the<\/p>\n
exercise   is   over,   the   amount   which   is   due   to   the   petitioner   by<\/p>\n
OP 7702\/2003                         -: 26 :-<\/span><\/p>\n
way of renewal commission shall be paid to him.   Orders in this<\/p>\n
regard   and   payment   will   be   effected   by   the   second   respondent<\/p>\n
within a period of three months from the date of receipt of a copy<\/p>\n
of this judgment.   To enable the Corporation to do so, it is open<\/p>\n
to   the   petitioner   to   file   a   statement   before   the   second<\/p>\n
respondent,   which   he   may   do   so   within   a   period   of   two   weeks<\/p>\n
from the date of receipt of a copy of this judgment.  Exts.P5, P7<\/p>\n
and P9 are upheld in so far as they relate to the termination of<\/p>\n
the petitioner’s appointment as an agent.\n<\/p>\n<\/p>\n
      Original Petition is allowed in part.  No order as to costs.<\/p>\n
                                                     V.Giri,<\/p>\n
                                                     Judge.\n<\/p>\n
ess 24\/8<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court V.Balakrishna Reddiar vs Branch Manager on 5 September, 2007 IN THE HIGH COURT OF KERALA AT ERNAKULAM OP No. 7702 of 2003(P) 1. V.BALAKRISHNA REDDIAR, … Petitioner Vs 1. BRANCH MANAGER, … Respondent 2. SENIOR DIVISIONAL MANAGER, 3. ZONAL MANAGER, 4. CHAIRMAN, For Petitioner :SRI.A.ANTONY For Respondent :SRI.R.S.KALKURA The Hon’ble MR. Justice […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-158360","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nV.Balakrishna Reddiar vs Branch Manager on 5 September, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/v-balakrishna-reddiar-vs-branch-manager-on-5-september-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"V.Balakrishna Reddiar vs Branch Manager on 5 September, 2007 - 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