Section 38 of the Insurance Act, 1938 not declaratory and retrospective in nature

Supreme Court : While upholding the order of the Bombay High Court, the division bench of Vikramajit Sen and S.K. Singh, JJ.,  held that in accordance with the Insurance Act, 1938, the policies issued by the appellant are both assignable and transferable.The bench also ruled that it is not appropriate to import the principles of public policy, which are always imprecise, difficult to define, into contractual matters.

The respondents had brought a writ petition before the Bombay High Court to set aside the circulars issued by the appellant which said that the assignments which prima facie are trade oriented cannot be registered by them. The court allowed the writ petition ruling that the insurance policies are both transferable and assignable. The decision was brought in an appeal before the Court. The Court brought the matter under the purview of Section 38 of the Insurance Act (prior to its amendment) and said that the only exception to procedure were its seven sub-section or the terms and condition of the policies.

The Court, on perusing the contentions and concerned statutory provisions, dismissed the appeal and observed that the amended Section 38 of the Insurance Act is not declaratory and was not intended by the legislature to make it retrospective in nature. The Court referred to its judgment in Avinder Singh v. State of Punjab, (1979) 1 SCC 137 and Agricultural Market Committee v. Shalimar Chemical Works Ltd., (1997) 5 SCC 516 wherein it has been held that “Legislature cannot face itself by delegating its plenary powers unless the delegate functions strictly under its provisions.” [LIC of India v. Insure policy plus services pvt. Ltd., 2015 SCC OnLine SC 1384 decided on 29th December, 2015]

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