Calcutta High Court
National Insurance Company Limited & ... vs Sujit Kumar Banerjee on 9 August, 2016
Bench: Manjula Chellur, Arijit Banerjee
In The High Court At Calcutta
In Appeal from its Constitutional Writ Jurisdiction
Original Side
APO 523 of 2014
WP 304 of 2009
National Insurance Company Limited & Ors.
-vs.-
Sujit Kumar Banerjee
With
APO 521 of 2014
WP 999 of 2009
National Insurance Company Limited & Ors.
-vs.-
Sujit Kumar Banerjee
Before : The Hon'ble The Chief Justice Dr. Manjula
Chellur
&
The Hon'ble Justice Mr. Arijit Banerjee
For the appellants : Mr. Ajay Krishna Chatterjee, Sr. Adv.
Mr. Abhijit Gangopadhyay, Adv.
Mr. Supriya Dubey, Adv.
Ms. Shilpi Ganguly, Adv.
For the respondents : Mr. Sabyasachi Chowdhury, Adv.
Mr. Soumen Datta, Adv.
Ms. Soma Kar Ghosh, Adv.
Mr. Dhruv Goren, Adv.
Heard On : 15.03.2016, 05.04.2016 & 17.05.2016 Judgment On : 09.08.2016 Arijit Banerjee:- (1) The abovementioned appeals arise out of two separate
judgments and orders, both dated 2 December, 2014, passed by the Learned Single Judge in WP No. 304 of 2009 and WP No. 999 of 2009. However, since the said two writ petitions arise out of the same set of facts, the two appeals have been taken up together for hearing and disposal by this common Judgment.
Re: APO 523 of 2014 (Arising out of 304 of 2009) (2) The respondent is admittedly an agent of the appellant National Insurance Co. Ltd. (in short 'NICL'). The respondent claimed agency commission from NICL for procuring insurance business for the Company. Admittedly, the respondent acted as a liaison in the capacity of an agent in respect of two insurance policies taken by the Kolkata Police from NICL. The policies are the Group Personal Medi- Claim Policy (in short 'Mediclaim Policy') and the Group Personal Accident Policy (in short 'Accident Policy'). The policies are for the benefit of the persons in the employment of the Kolkata Police. The claim of the respondent is on account of agency commission in connection with the mediclaim policy. On the refusal of NICL to pay the claimed amount, the respondent filed WP 304 of 2009 praying for, inter alia, the following reliefs:-
"(a) A writ of and/or in the nature of Mandamus do issue commanding the respondents to forthwith make payment of commission on all the premium collected under the agency code of the petitioner, being 90000310 till date within such time as this Hon'ble Court may deem fit and proper;
(b) A writ of and/or in the nature of Mandamus do issue commanding the respondents to forthwith make payment of commission of the said sum of Rs. 1,63,32,947/- as enumerated in annexure 'P-1' hereto;"
(3) The learned Judge allowed the writ petition. Hence, this appeal. Contention of the appellants:-
(4) Appearing on behalf of the appellants Mr. Ajay Krishna Chatterjee, Learned Sr. Advocate submitted that commission for the accident policy was payable to the respondent and the same was paid in full. There is no dispute on that account. However, in respect of mediclaim policy no commission was payable or ever paid to the respondent. In respect of mediclaim policy, only once in August, 2006, agency commission was erroneously shown for payment to the respondent due to erroneous computer entry but in the very next month the error was rectified by way of correction. The respondent accepted such correction of error and never objected to it prior to filing of the writ petition in March, 2009.
(5) The mediclaim policy in question is a 'Tailor Made Policy' and it is not a medical insurance policy which is normally found in the insurance market. The terms and conditions, coverage, premium etc of such a policy are separately framed and formulated according to the need and requirement of the policy taker. It is a group policy and by a single insurance policy a large number of individuals employed by any particular authority are covered.
(6) Learned Senior Counsel submitted that in respect of the mediclaim policy in question, pursuant to the discussion between the Kolkata Police Authority and Officers of NICL, a memorandum of understanding dated 22 July, 2005 was entered into by and between Kolkata Police and NICL recording therein the coverage and conditions of the Policy and the premium payable therefor. The respondent, as an agent had absolutely no role to play in framing or formulating the terms and conditions and premium of the mediclaim policy. The mediclaim policy issued by NICL was in the nature of undertaking social responsibilities by a body corporate being a public sector insurance company and a wing of the Union of India.
(7) The premium per police personnel per month was fixed at Rs.
37/- for a coverage of Rs. 1,00,000/-. The coverage was, in addition to the employee, also for three additional family members as per his/her choice. Since the role of the respondent was only liaisoning, it was known and understood by all concerned that in respect of the mediclaim policy no agency commission would be payable. The policy was a net rate policy and agency commission was not loaded in the premium. The respondent waived his agency commission in respect of the mediclaim policy and accepted his agency commission against accident policy.
(8) The respondent was fully aware that for the accident policy, he would earn huge agency commission which would enhance his status as an agent and under the same MOU he would not get any agency commission for the mediclaim policy. The respondent voluntarily waived his right to receive agency commission in connection with the mediclaim policy. Subsequently, he cannot make a volta facie after four years and claim agency commission in respect of the mediclaim policy.
(9) Mr. Chatterjee then submitted that the conduct of the respondent would show that his claim made in the writ petition is an afterthought. As per the respondent's claim, a sum of Rs. 3,13,586/- was accumulating as alleged agency commission per month in his favour starting from August, 2005. However, he made only two representations dated 18 January, 2006 and 29 March, 2006 and, thereafter, kept silent till 21 January, 2009 when he sent an Advocate's letter to the company claiming agency commission in the sum of Rs. 1,63,32,947/- in respect of the mediclaim policy. Had he been really entitled to receive such agency commission, surely he would not have kept silent and would not have waited for almost four years before filing the present proceedings. It is unbelievable that if, indeed, the respondent was entitled to receive such huge agency commission in respect of the mediclaim policy, he would keep quiet and only make sporadic demands after lapse of time. The present application is not a bona fide one.
(10) Learned Counsel submitted that after the writ petition was filed, the Learned Judge gave an opportunity to NICL to respond to the representation of the respondent/his Advocate dated 21 January, 2009 which NICL did by its letter dated 18 May, 2009 denying the entire claim of the respondent. NICL has always disputed the money claim put forward by the respondent and any adjudication thereof requires proof of a number of factual questions which cannot be conveniently done in a writ application.
(11) It was next submitted that the two insurance policies i.e. the mediclaim policy and the accident policy were issued pursuant to MOU entered into by and between NICL and Kolkata Police. In the year 2009, at the time of renewal of the policies, NICL proposed to enhance the rate of premium to Rs. 1669/- per year per person in respect of the mediclaim policy. In response, the Kolkata Police by its letter dated 26 June, 2009 requested NICL to reconsider the proposal of enhancement of premium and make it Rs. 125/- per month per employee inclusive of all taxes. In the said letter, the Kolkata Police clearly stated that in respect of the mediclaim policy no agency commission was being incurred by NICL. As regards the Kolkata Police enjoying the factum of non-addition of agency commission in the premium for the mediclaim policy, the source of such information could only be the respondent. Under the Insurance Regulatory and Development Authority (Licencing of Insurance Agent) Regulation, 2000 and in particular Regulation 8(1)(i)(d), an insurance agent shall have to disclose the scales of commission in respect of the insurance product offered for sale if asked by the prospecting client. In this case, the insurance product was the mediclaim policy. The prospect was the Kolkata Police who took the policy and the letter of the Kolkata Police dated 26 June, 2009 clearly shows that Kolkata Police knew that there was no agency commission in respect of the mediclaim policy. The respondent must have disclosed to Kolkata Police at some point of time that there was no agency commission involved in the case of mediclaim policy. Truth in this regard can only come to light by taking evidence of all concerned which cannot be done conveniently in the writ jurisdiction.
(12) Mr. Chatterjee submitted that there are serious disputed questions of fact involved in the present case. While the respondent claims agency commission in respect of the mediclaim policy, the appellants contend that no such commission was payable to the respondent since the premium payable in respect of the mediclaim policy was structured in a manner so as to give huge coverage without any commission being included in it. The mediclaim policy was clearly a 'Net Rate Policy' and the respondent while receiving huge agency commission in respect of the accident policy voluntarily waived his claim to receive agency commission in respect of the mediclaim policy. The rival contentions of the parties require evidence to be led by the parties for proper adjudication which can only be done in a regular suit.
(13) Learned Counsel finally submitted that the writ petition has been filed for enforcing a money claim simpliciter. There is no other prayer in the writ petition excepting the prayer for a mandamus directing the appellants to pay the agency commission claimed by the respondent. A writ petition to enforce a pure and simple money claim is not maintainable. In this connection, Learned Counsel relied on a decision of the Hon'ble Supreme Court in the case of Suganmal-vs.-State of Madhya Pradesh, AIR 1965 SC 1740. In particular, reliance was placed on the following observations of the Hon'ble Apex Court:-
"............We are of opinion that though the High Courts have power to pass an appropriate order in the exercise of the powers conferred under Art. 226 of the Constitution, such a petition solely praying for the issue of a writ of mandamus directing the State to refund the money is not ordinarily maintainable for the simple reason that a claim for such a refund can always be made in a suit against the authority which had illegally collected the money as a tax. (para 6) ....................We therefore hold that normally petitions solely praying for the refund of money against the State by a writ of mandamus are not to be entertained. The aggrieved party has the right of going to the Civil Court for claiming the amount and it is open to the State to raise all possible defences to the claim, defences which cannot, in most cases, be appropriately raised and considered in the exercise of writ jurisdiction."
(14) Relying upon the above submissions, learned Counsel for the appellants prayed that the appeal be allowed and the judgment and order impugned be set aside.
Contention of the respondent:-
(15) Appearing on behalf of the respondent Mr. Sabyasachi Chowdhury, Learned Counsel submitted that the respondent is an insurance agent within the meaning of Sec. 2(1) of the Insurance Act, and licensed under Sec. 42 of the said Act. As such the respondent is entitled to receive payment by way of commission or other remuneration in consideration of his soliciting and procuring business for the Insurance Company. He is also a registered licence holder under the Insurance Regulatory and Development Authority Act, 1999. (16) In the year 2005, the respondent brought business from Kolkata Police for the appellant company in respect of two policies, namely the Group Mediclaim Policy and Personal Accident Insurance Policy, both of which became effective from 1 July, 2005. Service rendered by the respondent was appreciated by the then Addl. Police Commissioner of Kolkata who was also the ex officio President of Kolkata Police Mediclaim and Accident Insurance Fund. Since the policies were routed through the respondent, they specifically mentioned the Agency Code of the respondent being 9000310. The rate of commission payable in respect of both the policies was 15 per cent of the total premium amount.
(17) However, the respondent was not paid the commission for the Group Mediclaim Insurance. In respect of Personal Accident Policy, he was paid commission for the first three years i.e. 2005-06, 2006-07 and 2007-08 but not for the year 2008-09. Repeated letters and/or requests made by the respondent to the appellants did not elicit any response.
(18) Accordingly, the respondent was compelled to file WP No. 304 of 2009 praying for, inter alia, a writ of mandamus directing the appellant to pay commission to the respondent in respect of the premium collected under the Agency Code of the respondent. The grievance of the respondent was not only for non-payment of commission for Group Mediclaim Insurance but also for non-payment of commission for Personal Accident Policy of the year 2008-09. The writ petition was moved on 5 May, 2009 when the matter was adjourned at the instance of the appellant till 19 May, 2009. On 18 May, 2009 the respondent received a reply to his demand letter along with a cheque of Rs. 1,09,563/- towards payment of commission in respect of Personal Accident Policy.
(19) Learned Counsel submitted that the right of an agent to receive commission for the business routed through him is a statutory right under the Insurance Regulatory and Development Authority Act, 2009 (in short the 'IRDA Act'). Once it is admitted that the business was routed through the respondent, and the same fact is evident from contemporaneous records including the commission bills and policies, there can be no question of denying such statutory entitlement of the respondent on any pretext whatsoever. The appellants relied on a circular dated 22 February, 2005 issued by the IRDA which provided for special discount in lieu of agency commission and it was contended that for Government Departments like that of Kolkata Police, there was a facility of 5 per cent special discount in lieu of agency commission. However, the said circular clearly specified that the special discount in lieu of agency commission would be restricted only to tariff business of Fire, Petrochemical etc. and also specified that in all cases where the insured is availing special discount in lieu of agency commission, the same should be indicated on the face of the policy.
Thus, the said circular is not applicable to the facts of the instant case at all. The Group Mediclaim Insurance being a non-tariff business, there was no question of giving any special discount in lieu of agency commission, particularly when it is admitted that the business in question had been routed through the respondent as agent. Consequently, none of the policies for the relevant years namely, 2005-06 to 2008-09 there is any such endorsement as envisaged in Clause 3 (b) of the said circular. On the contrary, the said policy ex facie shows that the business was routed through the insurance agent and the code of the agent is clearly mentioned which is the respondent's code.
(20) The appellants also contended that the respondent had waived his rights to receive commission that he would have been otherwise entitled to in respect of Group Mediclaim Policy and offered to forego commission on the premium of Group Mediclaim Policy. In the affidavit-in-opposition filed before the Learned First Court by the Insurance Co., there is an elaborate description of the computerised process adopted on behalf of the company wherefrom it would appear that once a business is routed through the Commission Code of an agent, the insurance commission payable is automatically calculated and in the case of the respondent, a manual correction in the field 'Commission Amount' was done each and every time in so far Group Mediclaim Policy is concerned altering the amount of such commission to 'NIL'. This was done to try and explain the admission made by the appellant in respect of commission for the month of July, 2006 where the appellant had admitted the respondent's entitlement to commission in respect of Group Mediclaim Policy at the rate of 15 per cent and also deducted TDS in respect thereof. The TDS so deducted was sought to be adjusted subsequently by showing a negative entry of Rs. 3,23,719/-.
(21) Learned Counsel then submitted that the case of alleged waiver or relinquishment of the respondent's right to receive commission was made out for the first time after five years and only after filing of the writ petition and there is not a single document in support of such contention of the appellants. The case of the appellants made out in its affidavit-in-opposition to the writ petition to the effect that the respondent relinquished or waived his right to receive commission worth crores of rupees for getting visiting cards printed and/or other paltry and insignificant benefits mentioned in paragraph 13 of the appellant's affidavit-in-opposition filed before the Learned First Court, is absurd and is utterly incredible.
(22) It was next submitted that the case of waiver and/or relinquishment is contrary to and/or inconsistent with the original case of the respondent not being entitled to receive commission. Once a case of waiver or relinquishment is urged, the right of the respondent to receive commission in respect of the insurance policy in question is otherwise recognized. Hence, the defence set up by the appellant is mutually inconsistent and/or contradictory.
(23) Further, even if it is assumed that there was any agreement for waiver or relinquishment of the respondent's commission, then the business would not have been routed through the Agency Code of the respondent. There is no explanation as to why the business was routed through the respondent's Agency Code year after year and there is also no explanation as to why such alleged case of waiver or relinquishment was made out for the first time only after filing of the writ petition and why there is no response to the earlier demands of the respondent.
(24) On the question of waiver, the respondent's learned Counsel relied on a Supreme Court decision in the case of Provash Chandra Dalui-vs.-Biswanath Banerjee, AIR 1989 SC 1834. In particular he relied on paragraph 21 of the said judgment which is set out hereunder:-
"The essential element of waiver is that there must be a voluntary and intentional relinquishment of a known right or such conduct as warrants the inference of the relinquishment of such right. It means forsaking the assertion of a right at the proper opportunity. The first respondent filed suit at the proper opportunity after the land was transferred to him, and no covenant to treat the appellants as Thika tenants could be shown to have run with the land. Waiver is distinct from estoppel in that in waiver the essential element is actual intent to abandon or surrender right, while in estoppel such intent is immaterial. The necessary condition is the detriment of the other party by the conduct of the one estopped. An estoppel may result though the party estopped did not intend to lose any existing right. Thus voluntary choice is the essence of waiver for which there must have existed an opportunity for a choice between the relinquishment and the conferment of the right in question. Nothing of the kind could be proved in this case to estopp the first respondent."
(25) Learned Counsel submitted that the appellant's case also does not stand in view of the express prohibition in Sec. 41 of the Insurance Act which does not allow any rebate on commission, except such rebate as may be allowed in accordance with the published prospectus.
(26) In response to the argument of the appellant's learned Counsel that a writ court should not issue an order directing payment of money, learned Counsel for the respondent submitted that the principal relief claimed in the present writ petition is a writ of certiorari to transmit the records pertaining to the Agency Code of the respondent and all other records pertaining to the insurance of Kolkata Police routed through the respondent so that conscionable justice may be done by considering the same. Once it is admitted that the business was routed through the Agency Code of the respondent, the payment of commission is statutorily recognized and there is nothing on record to show that the respondent is not entitled to the same. If the prayer for certiorari is granted, the writ of mandamus directing the appellant to pay the respondent commission would be a consequential relief. A writ petition cannot be defeated solely on the ground that the relief sought for is in the nature of money decree. Learned Counsel relied on a decision of the Hon'ble Supreme Court in the case of Biman Krishna Bose-vs.-United India Insurance Co. Ltd., (2001) 6 SCC 477, in support of his contention that the State and its instrumentalities are enjoined with an obligation to act fairly and in doing so, they can take into consideration only the relevant materials. They must not take any irrelevant or extraneous factor into consideration while arriving at a decision. Their actions or decisions cannot be arbitrary.
Learned Counsel also relied on the decision of the Hon'ble Apex Court in the case of ABL International Ltd.-vs.-Export Credit Guarantee Corporation of India Ltd., (2004) 3 SCC 553, in support of his submission that merely because some disputed questions of fact have been raised, there is no absolute bar with regard to the jurisdiction of the High Court to entertain a writ petition. Where the disputed facts pertain to interpretation or meaning of documents, the court can very well go into the same and decide the petition. (27) In the instant case, the only disputed question of fact is whether the Circular dated 22 February, 2005 is applicable to the facts of this case and on the interpretation of Clauses 3(a) and 3(b) of the said Circular and these questions can very well be gone into and decided by this Court, submitted learned Counsel for the respondent. On the basis of the above submissions, Learned Counsel for the respondent prayed for dismissal of the appeal.
Court's View:-
(28) The respondent's claim which was upheld by the Learned Single Judge is on account of agency commission. It is not in dispute that the respondent is an agent of the appellant insurance company. It is also not disputed that a mediclaim policy and an accident policy were taken out by the Kolkata Police from the appellant company. The respondent contends that he was instrumental in bringing such business to the appellant company and as such is entitled to agency commission in respect of both the policies. The appellant company states that as per the agreement between the appellant and the respondent, the latter was not entitled to commission in respect of the mediclaim policy. The company contends that the respondent was entitled to receive commission only in respect of the accident policy which has been paid to him. Since such commission was of a huge amount, the respondent agreed to forego commission in respect of the mediclaim policy. Alternatively, the company argues that the respondent waived his right to receive commission in respect of the mediclaim policy.
The appellant could not produce an iota of evidence to substantiate its stand that the respondent had agreed to be happy only with commission in respect of the accident policy. No document evidencing such agreement was placed before this Court. The respondent vehemently denies that he had ever agreed to forego commission in respect of the mediclaim policy which ran into a huge amount. No plausible explanation could be given by the company as to why the respondent would agree to forego such huge commission. Just as the appellant company is in insurance business not with any altruistic motive but with the object of making profit, the respondent operates as the company's insurance agent not with any charitable motive but to earn commission on the business that it brings for the appellant company. The case feebly put forward on behalf of the company that the respondent had agreed to forego commission in respect of the mediclaim policy in view of the company agreeing to print visiting cards and/or extending other benefits mentioned in paragraph 13 of the company's affidavit-in-opposition filed before the Learned First Court, is not credible at all. In the absence of any evidence that the respondent agreed to forego the commission in respect of the mediclaim policy and in the absence of any possible reason as to why he would forego such huge commission, we are unable to accept the appellant's contention that there was any agreement between the parties pursuant whereto the respondent gave up his right to receive commission in respect of the mediclaim policy. (29) As regards the company's contention that the respondent waived his right to receive commission in respect of the mediclaim policy, this very argument pre-supposes a right of the respondent to receive the commission in question. By urging the point of waiver, the appellant company recognises that the respondent otherwise has right to receive commission. The company argues that the respondent has waived such right. We are unable to accept this contention of the company. Waiver of a right cannot be easily inferred. Generally speaking, there should be an overt act on the part of the person indicating that he does not wish to enforce a right before the court can come to a conclusion that the person has waived such right. However, waiver of a right can also be by the conduct of a party which evinces intention of the party not to insist on such right. As observed by the Hon'ble Supreme Court in the case of Provash Chandra Dalui (supra), waiver is a voluntary and intentional relinquishment of a right or such conduct on the part of the person concerned as would justify the inference of relinquishment of such right. If a person who is aware of a right that he has, consciously gives up such right by an express act or clear conduct, he is said to have waived his right. It is an unequivocal indication whether in writing or by word of mouth or by conduct that the person does not intend to or is not interested in asserting his right.
In the instant case, there is no overt act on the part of the respondent that could amount to waiver of his right to receive the commission in question. Waiver also cannot be inferred from his conduct. On the contrary, he asserted his right to receive compensation by writing letters dated 18 January, 2006 and 29 March 2006. Finally, he sent a letter demanding justice through his Advocate on 21 Jaunary, 2009 and filed the writ petition in March, 2009. In such factual matrix by no stretch of imagination can it be said that the respondent waived his right to receive commission in respect of the mediclaim policy.
(30) It is also significant that the appellant company, in spite of receipt of the letters dated 18 January, 2009, 29 March, 2006 and 21 January, 2009, kept silent and did not dispute the claim for commission asserted in the said letters by the respondent. It would not be improper to hold that by such stoic silence and by not protesting to the claim lodged by the respondent, the company admitted the respondent's claim. It was only after the writ petition was moved on 5 May, 2009 and was adjourned at the instance of the appellants till 19 May, 2009, that the appellants responded to the claim of the respondent by denying the respondent's entitlement to commission in respect of the mediclaim policy. We have gone through the appellant's letter written in reply to the respondent's demand letter and we are of the opinion that the disputes sought to be raised therein as regards the validity of the respondent's claim are an afterthought having no real basis.
(31) Learned Counsel for the company contended that serious disputed questions of fact are involved in the present case for adjudication of which the Writ Court is not the proper forum. The Writ Court does not go into disputed questions of fact. We are unable to agree with the said contention. There is no absolute Rule of Law that a court in exercise of its writ jurisdiction cannot entertain disputed questions of fact. In ABL International Ltd. (supra), the Hon'ble Apex Court held that there is no absolute rule that in all cases involving disputed questions of fact the parties should be relegated to a civil suit. The Hon'ble Supreme Court referred to its earlier decision in the case of Gunwant Kaur-vs.-Municipal Committee, Bhatinda, (1969) 3 SCC 769, wherein it was observed that in a writ petition, if the facts required, even oral evidence can be taken. The Hon'ble Supreme court clearly held that in an appropriate case the Writ Court has the jurisdiction to entertain a writ petition involving disputed questions of fact and there is no absolute bar to entertaining a writ petition even if the same arises out of a contractual obligation and/or involves some disputed questions of fact.
In any event, we are of the opinion that the instant case does not involve any such disputed questions of fact as would persuade the court not to exercise its writ jurisdiction. Any and every dispute raised by a respondent in a writ petition in respect of the petitioner's claim does not make it disputed questions of fact. Otherwise, any unscrupulous respondent would succeed in defeating a writ petition by raising a dispute regarding the petitioner's claim, however frivolous and unmeritorious such dispute be.
(32) Learned Counsel for the appellants also submitted that a writ petition to enforce a money claim is not maintainable. He submitted that the only prayer in the writ petition is for a mandamus directing the company to pay the agency commission claimed by the respondent. He relied on the Hon'ble Supreme Court's decision in the case of Suganmal-vs.-State of Madhya Pradesh (supra), in support of his contention that a petition solely praying for the issue of a writ of mandamus directing the respondent to pay money to the petitioner is not maintainable. We have carefully considered the decision of the Hon'ble Supreme Court in the case of Suganmal (supra) and we are of the opinion that in that decision no absolute Rule of Law has been laid down that a writ court cannot direct payment of money in an appropriate case. If the respondent in a writ petition is otherwise amenable to the writ jurisdiction of the High Court and if it does not honour its undisputed monetary obligation, there is no reason why the Writ Court cannot direct that respondent to discharge such monetary obligation. In ABL International Ltd. (supra), the Apex Court considered its decision in the case of Suganmal (Supra) and observed that the judgment in Suganmal cannot be read as laying down the law that no writ petition at all can be entertained where claim is made for only refund of money consequent upon declaration of law that levy and collection of tax/cess is unconstitutional or without the authority of law. It is one thing to say that the High Court has no power under Art. 226 of the Constitution to issue a writ of mandamus for making refund of money illegally collected. It is yet another thing to say that such power should be exercised sparingly depending on the facts and circumstances of each case. The Hon'ble Supreme Court held that a writ petition involving a consequential relief of monetary claim is maintainable.
(33) In the case of State of Madhya Pradesh-vs.-Bhailal Bhai, AIR 1964 SC 1006, a five Judges Bench of the Hon'ble Apex Court held that the Writ Court has the power and jurisdiction to grant consequential monetary relief. In that case the sales tax assessed and paid by the assessee was declared by a Competent Court to be invalid in law. It was held by the Hon'ble Supreme Court that the payment of tax was made under a mistake within Sec. 72 of the Contract Act and so the Government to whom the payment had been made must repay the same. It was observed that the High Court has, in exercise of its jurisdiction under Art. 226 of the Constitution of India, power for the purpose of enforcement of fundamental rights and statutory rights to give consequential reliefs by ordering repayment of money realised by the Government without the authority of law. Of course, it was also observed that the special remedy provided under Art. 226 is not intended to supersede completely the modes of obtaining reliefs by an action in a Civil Court or to deny defence legitimately open in such actions. It is a discretionary power which has to be exercised by the Writ Court sparingly as and when the facts of a case so warrant. (34) In the case of B. C. Chaturvedi-vs.-Union of India, (1995) 6 SCC 749, a three Judges Bench of the Hon'ble Supreme Court held that though there is no provision parallel to Art. 142 of the Constitution of India relating to the High Courts, it cannot be said that the High Courts do not have the power to do complete justice. The power to do complete justice inheres in every Court not to speak of a Court of plenary jurisdiction like a High Court.
(35) We may note that in ABL International Ltd. (supra), the Hon'ble Apex Court observed that while entertaining an objection to the maintainability of a writ petition under Art. 226 of the Constitution, the High Court should bear in mind the fact that the power to issue prerogative writs under Art. 226 is plenary in nature and is not limited by any other provisions of the Constitution. The High Court having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. The court has imposed upon itself certain restrictions in the exercise of this power. This plenary power of the High Court will not normally be exercised by the court to the exclusion of other available remedies unless impugned action of the State or its instrumentality is arbitrary and unreasonable so as to violate the constitutional mandate of Art. 14 or for other valid and legitimate reasons, for which the court thinks it necessary to exercise the said jurisdiction.
(36) The appellant's reliance on IRDA Circular dated 22 February, 2005 is also misplaced. The said circular clearly does not apply to the kind of mediclaim policy which is involved in this case. The circular is absolutely clear that the special discount in lieu of agency commission applies only to tariff business of fire, petrochemical etc. and further that where the insured is getting benefit of special discount in lieu of agency commission, the same should be indicated on the face of the policy. The mediclaim policy in question is a non-tariff business and naturally there is no such endorsement on the policy as envisaged in Clause 3(b) of the said Circular.
(37) In the case in hand we find the respondent is entitled to receive commission in respect of the mediclaim policy. The mediclaim policy was undoubtedly routed through the respondent. The policy mentions the agency code of the respondent on the face of it. We may also take note of Sec. 41 of the Insurance Act, 1938 which does not allow any rebate on commission except as may be allowed in accordance with the published prospectus. The grounds on which the appellant company seeks to resist the respondent's claim are, in our opinion, completely frivolous and meritless on the face of it. The writ petitioner has been fighting for his dues since 2009. Seven long years have gone by. We are of the opinion that injustice has been done to the respondent and the facts of the case warrant interference of the writ court for doing complete justice. Since we find that the appellant company has absolutely no defence to the respondent's claim, it would be improper for this court to relegate the respondent to a civil forum at this stage.
(38) We find no infirmity in the judgment and order under challenge. Accordingly this appeal fails and is dismissed with cost assessed at Rs. 20,000/-.
Re: 521 of 2014 (Arising out of WP No 999 of 2009) (39) The factual background of the case has been narrated above and is not repeated.
(40) WP No. 999 of 2009 was filed by the respondent herein during the pendency of WP No. 304 of 2009. The grievance that the writ petitioner ventilated in the second writ petition was that with an oblique and ulterior motive to victimize the petitioner and to create a purported justification to deny his rights, on the mediclaim policy for the year 2009-10 being no. 150109/46/09/8500001207, the insurance company made an endorsement to the effect that 'The policy is subject to 5 per cent special discount in lieu of agency commission'. (41) The writ petitioner/respondent submitted before the Learned Single Judge and also before us that it would appear from the said policy that the premium mentioned therein has been routed through the petitioner's account and the petitioner's agency code is mentioned on the policy for the year 2009-10. He submitted that this endorsement was made for the first time in the policy in question which was a renewal of the previous policy pertaining to the Kolkata Police. The respondent submitted that such endorsement has been made arbitrarily and mala fide and only to create a purported ground for denying his lawful rights.
(42) Learned Senior Counsel for the appellant-insurance company submitted that the said endorsement was made on the basis of IRDA Circular dated 22 February, 2005 and was hence justified. In fact, the said Circular was the fulcrum of the argument of Learned Senior Counsel for the appellants. He further submitted that no case of mala fide or arbitrariness or victimization of the writ petitioner has been made out.
(43) The Ld. Judge duly considered the said Circular dated 22 February, 2005 and held that the same was not applicable to the nature of business involved in the writ petition. The endorsement on the policy that was under challenge was held to be beyond the said Circular. The Learned Judge also held that the endorsement would not be supported by the provisions of the Insurance Act, 1938. While disposing of APO No. 523 of 2014 we have dilated on the IRDA Circular dated 22 February, 2005 and we have opined that reliance placed by the insurance company on the said Circular is misconceived. The said Circular has no manner of application to the kind of mediclaim policy which is involved in this case. Hence, the endorsement on the mediclaim policy for the year 2009-10 which is under challenge cannot be sustained since such endorsement was made solely and wholly on the basis of the said Circular which does not apply to the facts of this case.
(44) Learned Senior Counsel for the company also urged the point of maintainability of the writ petition from which the instant appeal arises. For the reasons indicated by is while disposing of the other appeal, we hold that the present writ petition is also maintainable although it may amount to granting consequential monetary relief to the writ petitioner.
(45) Since the endorsement under challenge cannot be sustained either legally or factually, we are impelled to hold that the same was made arbitrarily and cannot be allowed to stand.
(46) In view of the aforesaid, we find no infirmity in the judgment and order impugned in this instant appeal. The appeal fails and is accordingly dismissed with costs assessed at Rs. 20,000/- (47) Both the appeals being APO 523 of 2014 and APO 521 of 2014 are accordingly disposed of.
(48) Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance of necessary formalities. I agree.
(Manjula Chellur, CJ.) (Arijit Banerjee, J.) Later:
After the judgment is delivered, prayer is made on behalf of the appellants for stay of operation of the judgment and order in both the appeals.
Such prayer is considered and rejected.
(Manjula Chellur, CJ.) (Arijit Banerjee, J.)