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Home » Case Briefs » Section 38 Of The Insurance Act, 1938 Not Declaratory And

Retrospective In Nature

Section 38 of the
Insurance Act, 1938
not declaratory and
retrospective in
nature
CASE BRIEFS SUPREME COURT

Published on January 6, 2016 – By Editor

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    

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 notNAVIGATION
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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