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Assignability of Life
Insurance Policies
By Umakanth Varottil / January 12, 2016 / 5 Min read / 1 comment

The
controversial practice of companies taking out “dead peasants”
insurance on the life of their employees was depicted by Michael Moore in
his film “Capitalism:
A Love Story”. In this, companies took insurance policies on the lives of
their employees and also paid the premium on them. In case of the death of
their employees, the claims would be paid out to the employer, and the family
of the deceased would not receive any amounts whatsoever. In fact, it seems the
case that neither the employees nor their family would even know of the
existence of such an insurance policy. Although derided, the practice has its
own share of supporters.
A
somewhat different practice that evokes similar sentiment was the subject
matter of a recent decision of the Supreme Court of India in LIC of India v. Insure
Policy
Plus Services Pvt Ltd. The respondent company Insure Policy Plus
Services Pvt Ltd (IPPS) is in the business of accepting and dealing in
assignment of life insurance policies issued by the appellant, Life Insurance
Corporate of India (LIC). IPPS would obtain assignments of life insurance
policies from the policyholders for a determined consideration and in turn
assign them further. Although LIC was notified of the assignments, the dispute
arose because LIC refused to register several of them on the basis of circular
it issued to prevent the large-scale assignment practice. This it did so on the
basis of broader policy considerations given that it affected the financial
security and stability of the families of the policyholders, and also the
larger public interest. IPPS challenged LIC’s stance before the Bombay High Court,
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which ruled on the interpretation of the Insurance Act, 1938 that lifeकमाएं
insurance policies are actionable claims within the meaning of theOlymp Transfer
Trade of
Property Act, 1882 and hence transferable in nature. After examining the
position in other jurisdictions, particularly the United States,
H OME it found
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prevalence of such practice. LIC appealed against the decision of the High
Court.
The
principal issue before the Supreme Court was whether life insurance policies
are freely tradable and assignable. In order to address this issue, the Court
interpreted the provisions of section 38 of the Insurance Act, which deals with
assignment and transfer of insurance policies. This provision was the subject
matter of amendment in 2015. Under the pre-amendment position, a policyholder
is free to assign the policy, which only requires to be registered with the
insurance company (which did not possess any discretion to refuse
registration). The Court observed:
It is thus clear that on transfer or
assignment of a policy and on the requisite procedure being complied with,
the
assignee has an absolute interest in the policy. The insurer was bound by
the
provisions of Section 38 to accept such a transfer or endorsement. The only
limitations placed on transferring a policy were in terms of the procedure laid
down in Section 38, and subject to the terms of the 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. …
Section
38 was amended by the Insurance Laws (Amendment) Act, 2015 and now confers
discretion upon the insurer to accept or decline any assignment “where it has
reason to believe that such transfer or assignment is not bona fide or is not in the
interest of the policyholder or in the
public interest or is for the purpose of trading of insurance policy”. Given
this amendment, the question before the Court was whether such discretion could
be read into Section 38 in the absence of an express stipulation. The Supreme
Court answered this in the negative. It noted:
It is 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. अपने कं यट
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कमाएं
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In
other words, the amendment conferring discretion upon the insurer
H OME suggests
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such discretion was hitherto non-existent. In that sense, the Supreme Court
largely dealt with the issues as a matter of statutory interpretation and
considers the nature of insurance policy as property. It refused to be swayed
by the broader public policy considerations, which are trickier to rule on. For
example, the Court observed:
We also think 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
preferentem rule is extremely
relevant inasmuch as it is the Appellant who has drafted the insurance policy
and was therefore well-position to include clauses making it specifically
impressible 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.
The
result of the decision may not be long lasting, as it will not apply to
assignments that occur after the 2015 amendment to section 38 of the Insurance
Act. In any event, if insurance companies wish to restrict assignments beyond
that prescribed in the amended section 38, they will have to reconsider the
scope of the assignment term in the policy document.

Contract Law Insurance Property Law

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About the author

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U k hV il
 Umakanth Varottil
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Umakanth Varottil is an Associate Professor at the Faculty of Law,
National University of Singapore. He specializes in corporate law and
governance, mergers and acquisitions and cross-border investments.
Prior to his foray into academia, Umakanth was a partner at a pre-
eminent law rm in India.

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VSWAMI
January 13, 2016 at 4:44 am

OFFHAND

Attention may be drawn to the posted comments @

http://www.moneylife.in/article/red-tape-vs-red-carpet-
ndashpart3/40798.html

As viewed:
The stand initially taken by the 'Insurer' (as set out in the write-up) is quite
sound and valid, both legally and legitimately; and accords/in tune with the
basic concept of 'INSURANCE'. On that premise, in one's conviction, the idea
of directly or indirectly 'trading on (IN?)'any kind of 'insurance product' is
anathema, hence deserves to be eschewed. If so, the whole matter, to be
precise the wisdom or absence of it in the amendments of the law, ought not
but be revisited and be frightfully reviewed from all its inter-connected (-
woven) angles.

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