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(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.

(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.

(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/-.