TMI Blog1975 (9) TMI 193X X X X Extracts X X X X X X X X Extracts X X X X ..... adverted in the plaint that after the death of Srinivasa Rao, the second respondent took charge of the estate and that despite several requests she has not given the shares due to the appellant and respondents 3 to 5. The case of the appellant in the plaint was that, with regard to the commission payable on the renewal premiums, he sent a notice to the Life Insurance Corporation the first respondent herein, calling upon it to pay his share of the commission, but the said Corporation sent a reply stating that Section 44 of the Insurance Act, 1938, had been modified by the Central Government and made applicable to the Life Insurance Corporation, as per the notification of the Ministry of Finance, No. GSR 734 dated 23-8-1958, that as per the modified section the nominee of the agent was entitled to receive the commission, that the second respondent herein had been so nominated by the late Srinivasa Rao and that payments were being made to her and would continue to be made to her. It was thereafter that the present suit was instituted for a declaration that the appellant herein was entitled to as an heir of the deceased Sirinivasa Rao, to 1/8 share of the renewals commission and for an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... renewal Commission? 3. What is the effect of the nomination made by the deceased? 4. Whether the plaintiff has waived his rights? 5. Is the discharge of the second defendant valid under Section 44 of the Insurance Act? 6. Is the plaintiff entitled to the declaration and injunction prayed for? 7. To what relief are the parties entitled? 5. The learned IV Assistant Judge of the City Civil Court, Madras, by his judgment and decree dated 23-3-1970, held that, under the nomination effected by Srinivasa Rao, in accordance with Section 44(2) of the Insurance Act, 1938, as amended by the Government of India Notification referred to above, it was the second respondent who was entitled to receive the money. The trial Court also held that, in any event, under Ex. B-1 dated 22-6-1966, being the Photostat copy of the agreement referred to by the second respondent herein, the other parties to the agreement had given up their rights to claim renewal commission and had given that right exclusively to the second respondent herein and on that ground held that the second respondent was entitled to receive the commission from the Life Insurance Corporation of Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt appeal, which contains as many as 37 grounds, to the effect that the said statement contained in the judgment of the trial Court was erroneous. On the other hand, ground No. 4 therein would appear to proceed on the basis of the correctness of the nomination of the second respondent herein. The said ground is as follows: The lower Court should have held that the second defendant, who is the nominee is nothing more than an agent to receive the money which remains as the property of the deceased, forming part of the estate . As I pointed out already, this ground proceeds on the basis that the second respondent herein is the nominee, which must be based on the concession that the nomination was there validly made. In view of his position, and in view of the law laid down by this Court as well as by the Supreme Court that the correctness of such a statement contained in the judgment of the Court cannot be challenged in appeal, without the party or counsel moving the very Court which made the statement in the judgment at the first instance, for correction thereof, if that was a mistake. Mr. Narayanaswami, once realised this position, did not pursue the point further. 8. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h commission would have been payable had such insurance agent been alive. When the Life Insurance Corporation Act, 1956, was passed, under which the first respondent was constituted, Section 43 of that Act provided for the application of certain provisions of the Insurance Act to the Corporation. Sub-section (1) of Section 43 enumerated certain sections of the Insurance Act which shall apply to the Corporation as they applied to any other insurer, and Sec. 44 is not one of the sections mentioned in Section 43(1). Therefore Section 44 to which I have drawn attention did not apply to the Life Insurance Corporation straightway by virtue of Section 43(1) of the Life Insurance Corporation Act. Section 43(2) conferred power on the Central Government to direct by notification in the Official Gazette that the sections enumerated therein shall apply to the Corporation subject to such conditions and modifications as may be specified in the notification, and one of the sections enumerated in sub-section (2) of Sec. 43 is Section 44. The Central Government would appear to have applied Section 44 with some modifications, which are not relevant to this appeal, to the Life Insurance Corporation i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount, contended that the said decision had held that such a nomination did not have the effect of conferring a beneficial interest on the nominee to the moneys which such nominee was authorised to receive, that the moneys formed part of the estate of the deceased, that the principle laid down in that decision must be applied to the present case also in respect of the nomination to receive the commission the renewal premium, that so applied the second respondent herein did not acquire any beneficial interest in the commission on the renewal premium, that it formed part of the estate of the late Srinivasa Rao and that the second respondent would be entitled only to a half share in the said commission. The question for consideration is whether such a contentions is correct or not. After a careful consideration of the statutory provisions as well as the judgment referred to above, I have come to the conclusion that the principle laid down in that decision would not apply to the construction of Sec. 44(2) in this case. The learned Judge of this Court in that decision considered the scope and effect of the assignment of an Insurance policy under Section 38 of the Act and the nomination m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pened to be made. It should be pointed out that the nomination as well as the liability on the part of the insurer to pay the sum assured become effective simultaneously, namely, at the moment of the death of the assured. So long as he was alive, the money was not payable to him, in the case of a whole life policy, and equally, having regard to the language of Section 39(1) of the Act, the nominee's right to receive the money arose only on the death of the assured. Section 39 itself did not deal with the title to the money assured, which was to be paid by the insurer to the nominee who was bound to give discharge to the insurer. It was in this context that the Court took the view that the title remained with the estate of the deceased and, therefore, with the heirs of the deceased, that the nomination did not in any way affect the title and that it merely clothed the nominee with the right to receive the amount from the insurer. 11. On the other hand, the provisions and purport of Section 44 of the Act are different. In the first place, under Section 44(1) it was a statutory right conferred on the agent to receive the commission on the renewal premium, notwithstanding the te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to except out of the preceding part of the enactment or to qualify something enacted therein, which but for the proviso would be within it. As I pointed out already the main part of Section 44(2) confers a right on the heirs to receive the commission, and the proviso to that sub-section enables the agent to make a nomination to receive the commission after his death, which would have the effect of taking away that right from the heirs themselves. 12. Here again, Mr. Narayanaswami brought in the analogy of the nomination under Section 39 and contended that, though the second respondent might be entitled to receive the money from the first respondent, she did not have title to the money by virtue of the nomination itself. This argument overlooks the fact that it is Section 44(2) which confers the right on the heirs and that the proviso in question constitutes a qualification to that section. Apart from that, the very language of Section 44(2) also would support my conclusion in this behalf. I have extracted Section 44(2) before its amendment by the Government of India notification 1962, and after its amendment also. The main part of sub-section (2) of Section 44 states that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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