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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 8542 OF 2009

LIC OF INDIA       …APPELLANT

VERSUS

INSURE POLICY PLUS SERVICES PVT. LTD. & ORS   …RESPONDENTS

J U D G M E N T

VIRKAMAJIT SEN, J.

1 This Appeal assails the judgment of the learned Division Bench of the

High Court of Judicature at Bombay dated 22.3.2007, which allowed the writ

petitions of the First and Second Respondent herein.  In this detailed and indeed

lucid Judgment it has been clarified that the insurance policies issued by the

Appellant “are transferable and assignable in accordance with the provisions of

the Insurance Act, 1938 and in terms of the contract of life insurance.”

2 The First Respondent is a company which is engaged,  inter alia, in the

business of accepting and dealing in assignment of life insurance policies issued

by the Appellant. The Second Respondent is the Director and shareholder of the

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First  Respondent.  The  Third  Respondent  is  a  statutory  authority  established

under  Section 3 of  the Insurance Regulatory & Development  Authority Act,

1999,  and  is  hereinafter  referred  to  as  IRDA.  The  business  of  the  First

Respondent is to acquire life insurance policies from policy holders by paying

them consideration. The assigned policy is registered and recorded in the books

of the Appellant, and is then further assigned to a third party for consideration.

Upon  registration  in  the  books  of  the  Appellant,  it  could  then  be  further

assigned.  

3 In  January  2003,  several  branches  of  the  Appellant  refused  to  accept

notices of assignment lodged by the First Respondent. A Circular was issued on

22.10.2003, the content of which is reproduced below for facility of reference:

“There have been reports in the Press recently of the existence of firms that are in the business of buying of Insurance policies which are  lapsed  after  acquiring  paid-up  value,  from  the  original policyholders by paying them an attractive sum over and above the surrender  value.   The  firm  then  becomes  the  assignee  and  is entitled to all  the rights of the policy be it  maturity claim/death claim, etc.

The  above  practice  if  it  becomes  prevalent  would  not  only undermine the real purpose of life insurance but also allow third parties  to  make  windfall  gains  by  such  wagering  contracts. Therefore, it is felt necessary to introduce measures to safeguard the  principles  of  life  insurance  and  the  larger  interest  of  our policyholders.

• If any Agent/employee is found to be involved in assisting such Companies in respect  of  data  acquisition of  lapsed policies  for  revival  and  subsequent  assignment,  strict action may be initiated against him.

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• The Branch Offices would have to be more vigilant in case of  revival  of  policies  that  have  been  lapsed  for  longer duration say over 3 years.  In such cases, strict control on non-acceptance of third party cheques, strict adherence to medical requirements, quality of medical examination etc. would be required. Wherever it is clear that a TIP company is involved, the revival may be outrightly rejected.

• If there are a number of assignments in the same Branch Office/Divisional  Office in favour of  the same Financial Company, the nature of the business of the Company may be investigated.

• If the Branch Office already has information that the nature of business interest of the Financial Company is trading in insurance policies only, the assignments in favour of such a Company may be declined.

• Such policyholders may be educated through a specially designed communication on the implications of “absolute assignments”.  This may be done to safeguard the interest of those who may become innocent victims of third parties indulging in this business.   

The  Branches  may  be  instructed  to  start  sending  the  data  on absolute  assignment  to  the  controlling  Divisions  cause-wise  to keep a vigil on trading of policies.

4 The  Appellant  also  stated  in  a  letter  to  the  First  Respondent  that

assignments in favour of companies who are only trading in insurances would

not be permissible. The various complaints by the First Respondent elicited a

response by IRDA dated 3.3.3004, in which it opined that the Appellant should

register the assignments.  The Appellant, however, refused to do so, and instead

issued another Circular dated 2.3.2005 reiterating the contents of the previous

circular, and laying down a procedure for “uniform implementation by all the

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offices of the Corporation”.  A portion of this Circular is reproduced, as it lays

down the rationale behind the refusal to register these policies:

Life Insurance Policies,  in general,  are a measure of  social security  for  the  family  members  of  the  life  assured  and  in  the absence of adequate savings or securities, these Policies are often the only financial security available to the family members of the deceased life assured.  The Government of India has guaranteed the Sum Assured with Bonus in all LIC Policies under Section 37 of  the  Life  Insurance  Corporation  Act,  1956  to  ensure  the availability of financial security to the family of the deceased.

In this  connection,  the  Hon’ble  Supreme Court  of  India  in Life Insurance Corporation of India Vs. Consumer Education and Research Centre (reported in AIR 1995 SC 1811) has ruled that the LIC discharges important Constitutional functions and the Policies issued by it are a measure of social security for the family of the life assured.

Between  April  2002  to  July  2003,  our  Offices  at  various places received several Policies for registration of assignments in favour  of  some  entities.   Newspaper  articles  also  appeared  in September  2003  about  some  Companies  carrying  on  trading  in insurance Policies.   The Corporation had to take urgent notice of such  a  remarkable  spurt  in  the  registration  of  assignments  in respect of such Policies and the Corporation then noticed that these Policies were being purchased and traded in like saleable securities of a stock market.  It was also noticed by the Corporation that the only purpose for which such assignment was being obtained, was with a view to trading in them by further selling them, which could continue indefinitely without reference to the life assured.

The  Corporation  had  noticed  that  this  process  of  trading, without  any  reference  to  the  life  assured,  is  in  the  nature  of speculation and weighing in as much as none of the subsequent assignees would have either the means or the inclination to find out whether the life assured was still alive.  This, in turn, would means that even if the life assured died a premature death, the Policies would continue in circulation by means of such trading until  its date of maturity and the Corporation would then have to pay the final/ultimate assignee, the entire maturity amount/value instead of

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the family members of the life assured, benefiting there under and despite  the fact  that  the death may have  occurred several  years prior thereto.

Such  trading  in  the  Corporation’ Policies  offends  the  very essence of the Life insurance contract and leaves the family of the life assured totally unprotected in the event of  death of  the life assured.  Hence, in order to prevent such speculation and wagering which  causes  harm  to  millions  of  families  all  over  India,  the Corporation has taken a policy decision to refuse the registration of assignments which are in the nature of trading.  For this purpose, the  Corporation  has  evolved  a  procedure  to  identify  such transactions so as to preserve and protect the interests of genuine policyholders  of  the  Corporation,  and  to  leave  untouched  the genuine assignments by the life assured.   

5 The First and Second Respondent before us filed a writ petition before the

High  Court  seeking  a  Declaration  that  the  insurance  policies  issued  by  the

Appellant are freely tradable and assignable in accordance with the provisions

of  the  Insurance  Act,  1938,  and  that  the  Circulars  dated  22.10.2003  and

2.3.2005 and the actions of the Appellant in refusing to register the assignment

of life insurance policies in favour of the First Respondent are illegal, null and

void.   

6 The High Court,  vide its impugned order, allowed the writ  petition. It

noted  that  life  insurance  policies  are  the  personal,  movable  property  of  the

policy holder, and can be said to be an actionable claim within the meaning of

Section 3 of the Transfer of Property Act. The High Court also recorded that the

business  of  assignment  of  such  policies  is  prevalent  the  world  over.  While

noting that  this  Court  in  LIC of  India  vs.  Consumer Education & Research

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Centre (1995) 5 SCC 482 has held that insurance is a social security measure, as

was also reflected in the Statement of Objects and Reasons of the Life Insurance

Corporation Act, 1956 (LIC Act), the High Court held that consequent to private

entry into the business of life insurance it is no longer possible to contend that

life insurance remained a measure of social security. It then went on to discuss

the decision of the Supreme Court of the United States of America in Basil P.

Warnoc vs George Davis 104 US 771, wherein it was held that “…in all cases

there must be reasonable ground, founded upon the relations of the parties to

each other, either pecuniary or of blood or affinity, to expect some benefit or

advantage  from  the  continuance  of  the  life  of  the  assured.  Otherwise  the

contract  is  a  mere  wager,  by  which  the  party  taking  the  policy  is  directly

interested in the early death of the assured. Such problems have a tendency to

create a desire for the event. They are, therefore, independently of any statute on

the subject condemned as being against public policy.” This decision came up

for consideration before the U.S. Supreme Court in Grigsby vs Russell 222 US

149. Grigsby did not agree with Warnoc, finding instead that life insurance is a

form of investment and savings, and to deny the right to sell it would diminish

its value. It was held that the rule of public policy that forbids the taking out of

insurance by one on the life of another in which he has no insurable interest

does not apply to the assignment by the insured of a valid policy to one not

having an insurable interest. In the impugned Judgment, the High Court noted

that  the  law in  the  U.S.A.  after  Grigsby  is  that  though there  has  to  be  an

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insurable  interest  at  the  inception  when  the  policy  is  taken  out,  subsequent

thereto there is no requirement of insurable interest at the time of transfer or

assignment. The argument raised by the First and Second Respondent was that

Section 38 of the Insurance Act is a substantive right, whereas the Appellant

contended that it is merely procedural. On an examination of the Section and the

manner  in  which  it  operates,  it  was  held  that  once  the  insured  transfers  or

assigns the policy in favour of the assignee, the assignment is complete between

them.  The insurer  clearly  has  no choice  or  option  in  law but  to  accept  the

transfer  or  assignment,  provided  the  procedure  laid  down  by  Section  38  is

followed. The High Court therefore held that Section 38 is a substantive and not

a procedural provision.  Section 38 makes it clear that the Legislature did not

treat life insurance as a security for protection of the widow or children of the

life  assured,  but  as  a  form  of  investment  and  self-compelled  saving.  It  is

therefore desirable to impart to it all the common characteristics of property.

The Appellant is the only player in the market which is refusing to accept such

assignments. It was held that if the terms of the contract between the Appellant

and the insured barred assignment, the assignee would also remain bound by

this  covenant.  However,  in  the  absence  of  any  such  contractual  term  the

Appellant cannot unilaterally vary the terms of the contract under the guise of a

policy decision, thereby endeavouring to disallow transfers that are legally valid

under Section 38. As Section 38 is mandatory, it is not open to the Appellant to

issue any policy decision that is contrary to it. The Circulars dated 22.10.2003

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and 2.3.2005 were found to be illegal and it was held that insurance policies are

transferrable and assignable.  

7 The question for  us to  decide is  whether insurance policies  are freely

tradable and assignable. To this end, it would be apposite to reproduce Section

38 of the Insurance Act as it stood prior to its amendment in 2015:  

“38.  Assignment  and  transfer  of  insurance  policies.—  (1) A transfer or assignment of a policy of life insurance, whether with or without consideration may be made only by an endorsement upon the policy itself or by a separate instrument, signed in either case by the transferor or by the assignor, his duly authorised agent and attested by at least one witness, specifically setting forth the fact of transfer or assignment.

(2) The transfer or assignment shall be complete and effectual upon  the  execution  of  such  endorsement  or  instrument  duly attested but except where the transfer or assignment is in favour of the insurer shall not be operative as against an insurer and shall not confer upon the transferee or assignee, or his legal representative, and  right  to  sue  for  the  amount  of  such  policy  or  the  moneys secured  thereby  until  a  notice  in  writing  of  the  transfer  or assignment and either the said endorsement or instrument itself or a  copy  thereof  certified  to  be  correct  by  both  transferor  and transferee or their duly authorised agents have been delivered to the insurer:

Provided that where the insurer maintains one or more places of business in India, such notice shall be delivered only at the place in India mentioned in the policy for the purpose or at his principal place of business in India.

(3) The date on which the notice referred to in sub-section (2) is delivered to the insurer shall regulate the priority of all claims under a transfer or assignment as between persons interested in the policy; and where there is more than one instrument of transfer or assignment the priority of the claims under such instruments shall be  governed  by  the  order  in  which  the  notices  referred  to  in sub-section (2) are delivered.

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(4) Upon the receipt of the notice referred to in sub-section (2), the insurer shall record the fact of such transfer or assignment together with the date thereof and the name of the transferee or the assignee and shall, on the request of the person by whom the notice was given, or of the transferee or assignee, on payment of a fee not exceeding  one  rupee,  grant  a  written  acknowledgement  of  the receipt  of  such notice;  and any such acknowledgement  shall  be conclusive evidence against the insurer that he has duly received the notice to which such acknowledgement relates.

(5)  Subject  to  the  terms  and  conditions  of  the  transfer  or assignment, the insurer shall, from the date of receipt of the notice referred to in sub-section (2), recognise the transferee or assignee named in the notice as the only person entitled to benefit under the policy,  and  such  person  shall  be  subject  to  all  liabilities  and equities to which the transferor or assignor was subject at the date of the transfer or assignment and may institute any proceedings in relation  to  the  policy  without  obtaining  the  consent  of  the transferor or assignor or making him a party to such proceedings.  

(6) Any rights and remedies of an assignee or transferee of a policy of life insurance under an assignment or transfer effected prior to the commencement of this Act shall not be affected by the provisions of this section.

(7) Notwithstanding any law or custom having the force of law to the contrary, an assignment in favour of a person made with the condition that it shall be inoperative or that the interest shall pass to some other person on the happening of a specified event during the  lifetime  of  the  person  whose  life  is  insured,  and  an assignment in favour of the survivor or survivors of a number of persons, shall be valid.”

This  section  has  subsequently  been  amended  by  The  Insurance  Laws

(Amendment) Act, 2015, and Section 38(2) now reads thus:  

(2) The  insurer  may  accept  the  transfer  or  assignment,  or decline to act upon any endorsement made under sub-section (1), where  it  has  sufficient  reason  to  believe  that  such  transfer  or assignment  is  not  bona  fide or  is  not  in  the  interest  of  the policyholder or in public interest or is for the purpose of trading of insurance policy.

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This, along with the other changes introduced in the Section, indicates that the

law as it currently stands gives the Appellant a discretion as to whether or not to

accept  an  assignment  provided  its  decision  is  predicated  on  the  transfer  or

assignment being (a) mala fide or (b) contrary to the interest of the policy holder

or (c) against public interest or (d) only for trading in the policy.  The question

before  us,  however,  is  limited  to  the  law  as  it  stood  prior  to  this  statutory

amendment.  

8 The Appellant has contended that only certain first assignments, in which

the policy is a pledge or collateral for a loan, would be acceptable. Based on an

undertaking to this effect, we have disposed of Civil Appeal No. 8543 of 2009

which  was  being  heard  along  with  this  Civil  Appeal.   The  Order  dated

10.12.2015 passed by us reads thus:

“The Affidavit filed on behalf of the Respondent No.1 is taken on  record.  Learned  Senior  Counsel  appearing  for  the  Appellant also submits that the Undertakings may be accepted by the Court. The Undertakings furnished in the said Affidavit are accepted by the Court. The affiant is cautioned that if any of the Undertakings are breached, apart from any other consequences, the Contempt of Courts would be attracted to the Respondent.  

In view of the above, the Interim Orders passed on 4th April, 2008 are recalled. The provisional registration shall  be accorded permanence  and/or  full  registration.  It  is  clarified  that  the Undertakings shall  stand extended to any fresh Applications for registration  that  may  now  be  moved  by  the  Respondents  for transactions,  assignments  and  transfers  effected  prior  to  the Amendment of Section 38, viz. with effect from 26th 2 December,

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2014; in other words, these Applications shall be processed with expedition as per the unamended Section 38.  

It  is  further  clarified  that  in  view  of  the  disposal  of  this Appeal, in the circumstances mentioned above, the Appellant will be liable to pay interest at the prevailing Bank rate (without penal interest)  as  per  Section  8  sub-section(5)  of  the  Insurance Regulatory  and  Development  Authority  (Protection  of  Policy Holder Interest) Regulations, 2002. The disposal of this Appeal is without prejudice to other Appeals in which arguments have been closed.  

The Civil Appeal is disposed of with no Order as to costs.”

The Appellant has argued that if multiple assignments are permitted the assignee

will not know if the insured has died, and trading in the policy may continue

even  after  he  has.  Furthermore,  allowing parties  in  the  position  of  the  First

Respondent to revive a lapsed policy would amount to wagering. Regarding the

prevailing law in other jurisdictions, it has been submitted that the law in the

U.S. is not based on Grigsby, as the U.S. legal system it is a federal one. Even if

Grigsby were taken as the prevailing interpretation of the law, it does not state

that all assignments must be accepted regardless that they are in bad faith. The

fact  that  the  Government  provides  tax  deductions  under  Section  80C of  the

Income Tax Act, 1961, that Life Insurance is not liable to be attached and sold in

execution of a decree under Section 60 of the Civil Procedure Code, and that

Life Insurance is guaranteed by the Central Government under Section 37 of the

LIC Act indicates that it is a measure of social security, so the power to refuse

‘bad  faith’ assignments  should  be  allowed  on  the  grounds  of  public  policy.

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Finally, it has been argued once again that Section 38 is merely procedural, and

the substantive law is to be found and extrapolated from Common Law.  

9 The First and Second Respondent, on the other hand, have contended that

Section 38 recognises all assignments that comply with the requirements stated

therein.    Insurance  is  intrinsically  a  matter  of  contract,  and  the  Appellant

cannot, by way of a Circular, amend a contract and interfere with contractual

rights  and  obligations.  An  insurable  interest  is  a  precondition  or  essential

element at the time of taking out the scheme but not thereafter, including at the

point of any reassignment. Section 38 is substantive, not procedural, so there is

no reason to advert to common law, as the Insurance Act was passed well after

the two American Supreme Court decisions alluded to above.  Subsection (9) of

the post-amendment Section 38 was relied upon, which reads as follows:

(9)   Any rights  and remedies  of  an  assignee  or  transferee  of  a policy of life insurance under an assignment or transfer effected prior to the commencement of the Insurance Law (Amendment) Act, 2015 shall not be affected by the provisions of this section.  

Thus this sub-section protects the existing rights of the First Respondent. Even

in the absence of this sub-section, Section 6 of the General Clauses Act, 1897

would have come to the aid of these Respondents. It has also been alleged that

the  only  reason  that  the  Appellant  is  averse  to  allowing  re-assignment  of

policies  is  because  it  wants  to  protect  its  own  interests  and  repudiate  its

contractual liability.

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10 It  would  be  apposite  for  us  to  begin  our  analysis  by  discussing  the

operation of Section 38 of the Insurance Act as it stood prior to its amendment.

Section  38(1)  prescribed  the  procedure  by  which  assignment  were  to  be

effected,  namely,  by  way  of  an  endorsement  or  by  means  of  a  separate

instrument.  Sub-section (2) stated that once a transfer or assignment was made

in  the  manner  prescribed by sub-section  (1),  it  was  complete  and effectual.

However, this transfer or assignment only became binding upon written notice

thereof being given by the transferor and transferee to the insurer. Sub-section

(3) determined the priority of claims on the Insurance Policy by operation of

law. Sub-section  (4)  directed  that  upon  receipt  of  the  notice  referred  to  in

sub-section (2), the insurer became bound to record the transfer or assignment

together with the date thereof and the name of the transferee and the assignee;

and  if  so  requested  grant  a  written  acknowledgment  of  the  receipt  of  such

notice.   Sub-section  (5)  mandated  the  insurer  to  recognise  the  transferee  or

assignee named in the notice as the only person entitled to the benefit under the

policy  and  such  person  would  be  subject  to  all  liabilities  and  equities.

Sub-section (6) and (7) provided for some other contingencies with which we

are not immediately concerned.  

11 It  is  thus  clear  that  on  transfer  or  assignment  of  a  policy  and on the

requisite  procedure being complied with,  the assignee alone has an absolute

interest in the policy. The insurer was bound by the provisions of Section 38 to

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accept  such  a  transfer  or  endorsement.  The  only  limitations  placed  on

transferring a policy were in terms of the procedure laid out in Section 38, and

subject to the terms of policy itself. The Section left no scope for the insurer to

dispute the right to transfer or assign the policy. Section 38 was thus clearly

mandatory  and  substantive.  The  erstwhile  Section  39(4)  also  deserves

reproduction  in  this  vein,  as  it  further  indicated  the  mandatory  character  of

Section 38. It reads thus:

(4) A transfer or assignment of a policy made in accordance with section 38 shall automatically cancel a nomination:

    Provided that the assignment, of a policy to the insurer who bears  the  risk  on  the  policy  at  the  time  of  the  assignment,  in consideration of a loan granted by that insurer on the security of the  policy  within  its  surrender  value,  or  its  reassignment  on repayment  of  the  loan  shall  not  cancel  a  nomination,  but  shall affect the rights of the nominee only to the extent of the insurer's interest in the policy.

12 The Appellant has argued that Section 38 could result in scenarios where

it was bound to accept fraudulent policies since it had not been bestowed with

discretionary powers.  We do not  find any content  in  this  contention,  for  the

reason that in cases of fraud, the assignment could be challenged on that ground

even after being recorded.  Furthermore, when the Appellant encountered a fraud

inter alia in reviving lapsed policies, such as in cases of reviving the policy of

an insured who is already deceased,  it  could refuse to recognize the revival,

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which it is well within its rights to do as a contractual clause to this effect forms

part of the policy.  

13 The  amendment  to  the  Insurance  Act  by  the  Insurance  Laws

(Amendment) Act, 2015, is significant. As previously discussed, Section 38 as it

now stands gives the insurer the discretion to decide whether or not to accept a

transfer or assignment of an Insurance Policy. The Amendment Act, according

to  its  Statement  of  Objects  and  Reasons,  is  “An  Act  further  to  amend  the

Insurance Act, 1938 and the General Insurance Business (Nationalisation) Act,

1972 and to amend the Insurance Regulatory and Development Authority Act,

1999.”   It is thus neither a declaratory or clarificatory piece of legislation.   The

language of the extant Section 38 cannot be interpreted to mean that this is what

Section 38 had meant all along. Furthermore, had the Legislature intended to

amend Section 38 retrospectively, it would have said so explicitly. Instead, it has

incorporated sub-section (9), which protects rights and remedies of assignees

that arose prior to the commencement of the Amendment Act. It is thus clear

that  Parliament  intended  to  allow  all  previous  assignments  and  transfers

provided that they complied with the requirements laid out in Section 38. In the

face  of  this  clear  legislative  intent,  no  other  interpretation  of  Section  38  is

possible. It is accordingly not incumbent for us to discuss whether insurance

policies partake of the nature of social security, or whether the transfer of such

policies tantamount to wagering contracts.

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14 In our considered opinion it is not open to the Appellants to charter a

course which is different to the postulation in the Insurance Act, by means of its

own Circulars.  We need not go beyond mentioning the decision of this Court in

Avinder Singh v. State of Punjab (1979) 1 SCC 137 wherein it has been held

that the Legislature cannot efface itself by delegating its plenary powers unless

the delegate functions strictly under its supervision.   If the delegate is allowed

to  function  independently  it  would  tantamount  to  “usurpation  of  legislative

power itself.”   This view came to be reiterated to decades later in Agricultural

Market Committee v. Shalimar Chemical Works Ltd. (1997) 5 SCC 516.  This

Court held that “....... Power to make subsidiary legislation may be entrusted by

the legislature to another body of its choice but the legislature should, before

delegating,  enunciate  either  expressly  or  by  implication,  the  policy  and  the

principles for the guidance of the delegates”.  The position that obtains today is

diametrically opposite inasmuch as the statute permitted, at the relevant time,

the  assignment  and/or  transfer  of  life  insurance  policies,  but  the  delegate,

through  its  Circulars,  has  attempted  to  nullify  that  provision  of  law.   We

conclude,  therefore,  that  the  circulars  are  ultra  vires the  Statute  and  must

therefore be made ineffectual.      

15 We also think that it is not appropriate to import the principles of public

policy, which are always imprecise, difficult to define, and akin to an unruly

horse,  into  contractual  matters.   The  contra  proferentem  rule  is  extremely

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relevant inasmuch as it is the Appellant who has drafted the insurance policy

and  was  therefore  well-positioned  to  include  clauses  making  it  specifically

impermissible  to  assign policies.   In  the absence  of  any such covenant,  the

Appellant  cannot  be  heard  to  say  that  such transfers  or  assignments  violate

public policy.  In any event, as we have seen above, the general global practice

is to permit assignments of insurance policies.

16 It is for these manifold reasons and in view of the analysis of the law

prior to as well as post the amendments carried out in the Insurance Act that we

find  the  Appeal  to  be  devoid  of  merits.   The  impugned  Judgment  is  well

-reasoned and takes within its sweep all the relevant documents raised.  The

Appeal is accordingly dismissed.

.................................................J. (VIKRAMAJIT SEN)

.................................................J. (SHIVA KIRTI SINGH)

New Delhi, December 29, 2015.