The Madras High Court dismissed a petition challenging the constitutional validity of Section 64UM(8) of the Insurance Act, 1938. The Court held that the provision is guided by the Act's disqualification criteria and aims to protect claimants from disproportionate survey costs, not violating fundamental rights.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.11.2021
CORAM :
THE HON'BLE MR.MUNISHWAR NATH BHANDARI,
ACTING CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE P.D.AUDIKESAVALU W.P.No.9972 of 2021 & WMP.Nos.10597 & 10604 of 2021
Indian Institute of Insurance Surveyors and Loss Assessors Tamil Nadu Chapter rep.by its authorized representative Mr.A.R.Ramesh ..Petitioner Vs 1. Government of India Ministry of Finance Rep. by its Secretary North Block New Celhi 110001. 2. Insurance Regulatory and Development Authority (IRDA) Rep. by its Chairman, Parishram Bhavan, 3rd Floor, Basheer Bagh, Hyderabad 500004. 3. United india Insurace Co.Ltd Rep. by its CEO/CMD, 24 Whites Road Chennai 600 014. 4. ACKO General Insurance Ltd. Rep. by its CEO/CMD, Unit No.301 and 302 3rd Floor, F wing, Lotus Corporate Park Off Western Express Highway, Goregaon East, Mumbai 400063. 5. Bajaj Allianz General Insurance Co.Ltd. Rep. by its CEO/CMD, Bajaj Allianz House, Airport Road, Yerawada, Pune 411006.
Prayer: Petition filed under Article 226 of the Constitution of India for a Writ of Declaration declaring Section 64 UM(8)(c) of the Insurance Act as unconstitutional and ultra vires under Articles 14, 21 and 19(1)(g) and consequently delcare the Notification dated 14/07/2015 vide Ref.No.IRDA/NL/Cir/Misc/129/07/2015 issued by the 2nd respondent as illegal and void and issue such order or other orders any other writ order or direction directing 1st respondent in the nature of the declaring Section 64UM(8) of the Insurance Act as null and void and consequentially forbearing respondents 3 to 27 from engaging unauthorized personnel for carrying out survey and assessment of motor own damage loss in respect of claims up to Rs.50 000/- under the pretense of empanelment of loss assessment agencies and direct the second respondent to issue directions to the insurers at large mandating them to employ only approved surveyors or loss assessors for claims below Rs.50,000/- as well in accordance with Section 64UM of the Insurance Act.
| For the Petitioner | : Mr.V.Prakash Senior Counsel For Mr.C.P.R.Kamaraj |
|---|---|
| For the Respondents | : Mr.R.Sankaranarayanan, ASG-I assisted by Mr.A.Kumaraguru, SPC for R1 |
| Mr.M.B.Raghavan for M/s. M.B.Gopalan&AssociatesforR2 |
|
| Mr.S.Arunkumar for R3, R7, R14 and R17 |
|
| Mr.S.Stanley John for R6 and R13 |
|
| No appearance for R5, R8, R11, R12, R13, R18, R20, R21, R23 and R25 to R27 |
|
| R4, R9, R10, R15, R16, R19, R22 and R24 deleted from cause list vide order dated 24.11.2021 |
ORDER
(Order of the Court was made by the Hon'ble Acting Chief Justice)
The challenge to Section 64UM(8) of the Insurance Act, 1938 (hereinafter the Act of 1938) has been made with a prayer to declare it to be ultra vires The Constitution of India.
“64UM. Surveyors or loss assessors. — (1) Save as otherwise provided in this Section, no person shall act as a surveyor or loss assessor in respect of general insurance business after the expiry of a period of one year from the commencement of the Insurance Laws (Amendment) Act, 2015 (5 of 2015), unless he— (a) possesses such academic qualifications as may be specified by the regulations made under this Act; and (b) is a member of a professional body of surveyors and loss assessors, namely, the Indian Institute of Insurance Surveyors and Loss Assessors: Provided that in the case of a firm or company, all the partners or
directors or other persons, who may be called upon to make a survey or assess a loss reported, as the case may be, shall fulfill the requirements of clauses (a) and (b).
(2) Every surveyor and loss assessor shall comply with the code of conduct in respect of his duties, responsibilities and other professional requirements, as may be specified by the regulations made under the Act. (3) Notwithstanding anything contained in the foregoing provisions, a class or class of persons acting as a licensed surveyor or loss assessor prior to the commencement of the Insurance Laws (Amendment) Act, 2015 (5 of 2015) shall continue to act as such for such period as may be specified by the regulations made under this Act: Provided that the surveyor or loss assessor shall, within the period as may be notified by the Authority, satisfy the requirements of clause (a) and clause (b) of Sub-Section (1), failing which, the surveyor or loss assessor shall be automatically disqualified to act as a surveyor or loss assessor.
(4) No claim in respect of a loss which has occurred in India and requiring to be paid or settled in India equal to or exceeding an amount specified in the regulations by the Authority in value on any policy of insurance, arising or intimated to an insurer at any time after the expiry of a period of one year from the commencement of the Insurance Laws (Amendment) Act, 2015 (5 of 2015), shall, unless otherwise directed by the Authority, be admitted for payment or settled by the insurer unless he has obtained a report, on the loss that has occurred, from a person who holds a licence issued under this Section to act as a surveyor or loss assessor (hereafter referred to as “approved surveyor or loss assessor”): Provided that nothing in this Sub-Section shall be deemed to take away or abridge the right of the insurer to pay or settle any claim at any amount different from the amount assessed by the approved surveyor or loss assessor.
(5) The Authority may, at any time, in
respect of any claim of the nature referred to in Sub-Section (4), call for an independent report from any other approved surveyor or loss assessor specified by him and such surveyor or loss assessor shall furnish such report to the Authority within such time as may be specified by the Authority or if no time limit has been specified by him within a reasonable time and the cost of, or incidental to, such report shall be borne by the insurer.
(6) The Authority may, on receipt of a report referred to in Sub-Section (5), issue such directions as it may consider necessary with regard to the settlement of the claim including any direction to settle a claim at a figure less than, or more than, that at which it is proposed to settle it or it was settled and the insurer shall be bound to comply with such directions: Provided that where the Authority issues a direction for settling a claim at a figure lower than that at which it has already been settled, the insurer shall be deemed to comply with such direction if he satisfies the Authority that all reasonable steps, with due regard to the question whether the expenditure involved is not disproportionate to the amount required to be recovered, have been taken with due dispatch by him: Provided further that no direction for the payment of a lesser sum shall be made where the amount of the claim has already been paid and the Authority is of opinion that the recovery of the amount paid in excess would cause undue hardship to the insured: Provided also that nothing in this Section shall relieve the insurer from any liability, civil or criminal, to which he would have been subject but for the provisions of this Sub-Section.
(7) No insurer shall, after the expiry of a period of one year from the commencement of the Insurance Laws (Amendment) Act, 2015 (5 of 2015) pay to any person any fee or remuneration for surveying, verifying or reporting on a claim of loss under a policy of insurance unless the person making such survey, verification or report is an approved surveyor or loss assessor.
(8) Where, in the case of a claim of less than the amount specified in SubSection (4) in value on any policy of insurance it is not practicable for an insurer to employ an approved surveyor or loss assessor without incurring expenses disproportionate to the amount of the claim, the insurer may employ any other person (not being a person disqualified for the time being for being employed as a surveyor or loss assessor) for surveying such loss and may pay such reasonable fee or remuneration to the person so employed as he may think fit.
(9) The Authority may in respect of any claim of value of less than the amount specified in Sub-Section (4) on an insurance policy, if the claim has not been or is not proposed to be reported upon by a surveyor or loss assessor, direct that such claim shall be reported upon by an approved surveyor or loss assessor and where the Authority makes such direction, the provisions of Sub-Sections (5) and (6) shall apply in respect of such claim.
(10) Where, in relation to any class of claims, the Authority is satisfied that it is customary to entrust the work of survey or loss assessment to any person other than a licensed surveyor or loss assessor, or it is not practicable to make any survey or loss assessment, it may, by an order, exempt such class of claims from the operation of this Section.] .”
of Sub-Section (8) apply only to the claims, which are of a value of less than the amount specified in Sub-Section (4) and that too, when the Insurer finds it to be not practicable to employ an approved surveyor or loss assessor without incurring expenses disproportionate to the amount of claim. It is to save the claimants from incurring expenses disproportionate to the claim.
(4) read with under Regulation 12 of the Regulations 2015. The provision aforesaid is to save the claimants from incurring expenses disproportionate to the claim.
"42D. (1) The Authority or an officer authorized by it in this behalf shall, in the manner determined by the regulations made by the Authority and on payment of the fees determined by the regulations made by the Authority, issue to any person making an application in the manner determined by the regulations, and not suffering from any of the disqualifications herein mentioned, a licence to act as an intermediary or an insurance intermediary under this Act:
Provided that,-
(a) in the case of an individual, he does not suffer from any of the disqualifications mentioned in sub-section
(4) of section 42, or
(b) in the case of a company or firm, any of its directors or partners does not suffer from any of the said disqualifications.
(2) A licence issued under this section shall entitle the holder thereof to act as an intermediary or insurance intermediary.
(3) A licence issued under this section shall remain in force for a period of three years only from the date of issue, but shall, if the applicant, being an individual does not, or being a company or firm any of its directors or partners does not suffer from any of the disqualifications mentioned in clauses (b), (c), (d), (e) and (f) of sub-section (4) of section 42 and the application for renewal of licence reaches the issuing authority at least thirty days
before the date on which the licence ceases to remain in force, be renewed for a period of three years at any one time on payment of the fee, determined by the regulations made by the Authority and additional fee for an amount determined by the regulations, not exceeding one hundred rupees by way of penalty, if the application for renewal of the licence does not reach the issuing authority at least thirty days before the date on which the licence ceases to remain in force.
(4) No application for the renewal of a licence under this section shall be entertained if the application does not reach the issuing authority before the licence ceases to remain in force:
Provided that the Authority may, if satisfied that undue hardship would be caused otherwise, accept any application in contravention of this sub-section on payment by the application of the penalty of seven hundred and fifty rupees.
(5) The disqualifications above referred to shall be the following: -
(a) that the person is a minor;
(b) that he is found to be a unsound mind by a court of competent jurisdiction;
(c) that he has been found guilty of criminal misappropriation or criminal breach of trust or cheating or forgery or an abetment of or attempt to commit any such offence by a court of competent jurisdiction:
Provided that, where at least five years have elapsed since the completion of the sentence imposed on any person in respect of any such offence, the Authority shall ordinarily declare in respect of such person that his conviction shall cease to operate as a disqualification under this clause;
(d) that in the course of any judicial proceedings relating to any policy of insurance of the winding up of an insurance company or in the course of an investigation of the affairs of an insurer it has been found that he has been guilty of or has knowingly participated in or connived at any fraud dishonestly or
misrepresentation against an insurer or an insured;
(e) that he does not possess the requisite qualifications and practical training for a period not exceeding twelve months, as may be specified by the regulations made by the Authority in this behalf;
(f) that he has not passed such examinations as may be specified by the regulations made by the Authority in this behalf;
(g) that he violates the code of conduct as may be specified by the regulations made by the Authority.
(6) If it be found that an intermediary or an insurance intermediary suffers from any of the foregoing disqualifications, without prejudice to any other penalty to which he may be liable, the Authority shall, and if the intermediary or an insurance intermediary has knowingly contravened any provisions of this Act may cancel the licence issued to the intermediary or insurance intermediary under this section.
(7) The Authority may issue a duplicate licence to replace a licence lost, destroyed or mutilated, on payment of such fee, as may be determined by the regulations made by the Authority.
(8) Any person who acts as an intermediary or an insurance intermediary without holding a licence issued under this section to act as such, shall be punishable with fine, and any insurer or any person who appoints as an intermediary or an insurance intermediary or any person not licensed to act as such or transacts any insurance business in India through any such person, shall be punishable with fine.
(9) Where the person contravening sub-section (8) is a company or a firm, then, without prejudice to any other proceedings which may be taken against the company or firm, every director, manager, secretary or other officer of the company, and every partner of the firm who is knowingly a party to such contravention shall be punishable with fine."
person should be one not disqualified to be a surveyor. This power is not unguided, rather governed by Sub-Section (4) of Section 64UM and Section 42D of the Act.
"Now the question arises for our consideration in respect of which a controversy is being raised is with regard to the true meaning of the word "not being a person disqualified". The learned Single Judge has held that if a person does not fulfill the requisite qualifications in clause (a) to (g) of Sub-Section 1(D) of Section 64UM, he is to be considered a person disqualified for being employed as surveyor or loss assessor. We, however, feel that the aforesaid conclusion arrived at by the learned Single Judge appear to us to be not correct and we express our pain for not being able to agree with him on this count. In our opinion, the word 'disqualified' does not mean not being qualified. We also feel that while interpreting the provisions of a statute the plain meaning of the words or the expressions should be given effect to and in case the said word or expression is found to be already defined in the Act itself, then the said definition as enumerated in the Act itself should be held to be the guiding principle for giving true meaning to the expression. As we have staled
earlier Sub-Section (4) of Section 42 of the Act clearly lays down the criteria and/or grounds on which a person is said to be disqualified. In our opinion, while interpreting the provisions of Sub-Section (6) of section 64UM, the expression "any other person not being a person disqualified for the time being" should be given the same meaning as is given to the said expression appearing in Section 42 (4) and nothing beyond it and thereby qualifying a person not suffering from any of the disqualifications' occurring in SubSection (1) of Section 42 and enumerated in Sub-Section (4) of Section 42 of the Act."
Sd/-
Deputy Registrar(CS)
//True Copy//
Sub Assistant Registrar
RS
To:
North Block New Celhi 110001.
WMP.Nos.10597 & 10604 of 2021
MG(CO) RGA(07/12/2021)
3 issues framed by the court
Whether Section 64UM(8) of the Insurance Act, 1938 granting unguided power to insurers to employ any person for small claims violates Articles 14, 19(1)(g), and 21 of the Constitution.
Whether the phrase 'any other person' in Section 64UM(8) permits engagement of persons disqualified under Section 42D of the Act.
Whether the legislative intent behind Section 64UM(8) is to provide safeguards to claimants by preventing disproportionate expenses.
Colour shows how this judgement treated each authority
Surveyors Welfare Association (Regd.) Vs. Union of India & OthersReferred¶51
Surveyors Welfare Association (Regd.) Vs. Union of India & Others [ILR 1996 (2) Delhi 22] · Who else cites this
R.K.Elango Vs. Insurance Regulatory and Development Authority (IRDA)Referred¶21
R.K.Elango Vs. Insurance Regulatory and Development Authority (IRDA)
1 provisions across 1 enactments
Indian Institute of Insurance Surveyors and Loss Assessors Tamil Nadu Chapter
Government of India Ministry of Finance
Insurance Regulatory and Development Authority
United india Insurace Co.Ltd
ACKO General Insurance Ltd.
MUNISHWAR NATH BHANDARI
P.D.AUDIKESAVALU
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
