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Kerala State Private Bus Operators Federation Vs. Insurance Regulatory and Development Authority - Court Judgment

LegalCrystal Citation
CourtKerala High Court
Decided On
Case NumberW.A.Nos.949 & 953 of 2011
Judge
AppellantKerala State Private Bus Operators Federation
Respondentinsurance Regulatory and Development Authority
Cases Referred

1. All Kerala Bus Operators Organisation and Anr. V. I.R.D.A. and Ors. (2007 (2) KLT 893).
2. Joint Council of Bus Syndicate v. Union of India (AIR 1991 SC 1616).
3. S. Narayana Iyer v. Union of India and Anr. (AIR 1976 SC 1986)
4. Bihar State Electricity Board v. M/s. Usha Martin Industries and Anr. (AIR 1997 SC 2489)
5. Balco Employees Union (Regd.) v. Union of India and Ors. (2002 (1) KLT SN 34 (C.No.41) SC=AIR 2002 SC 350)
6. Association of Industrial Electricity Users v. State of Andhra Pradesh and Ors. ((2002) 3 SCC 711).
7. 2011 (3) KLT 192

Excerpt:
.....are preferred – court held - no material is placed before us to conclude that even without a revision, insurance business can be run profitably - so also, there is nothing to conclude that the revised tariff rates are exploitive - no reason to interfere with the judgment impugned - writ appeals are devoid of merits and dismissed......to the respondents, by a circular dated 4.12.2006, the second respondent decided not to fix the tariff rates in respect of the insurance premiums. therefore, according to the learned counsel, the second respondent is not in the field and the first respondent by virtue of s.14(2)(i) is the authority competent. neither the circular dated 4.12.2006 is produced before us not the legality or validity of the same is assailed. adding to the above, we notice that the legality of the said circular was subject matter before this court at the instance of the appellants in w.a.no.953/2011 and this court upheld the same vide decision in all kerala bus operators organisation and anr. v. i.r.d.a. and ors. (2007 (2) klt 893). therefore, the same issue is not liable to be agitated afresh, especially.....
Judgment:

COMMON JUDGMENT

P.S. GOPINATHAN, J.

1. Writ Appeal is against decision reported in 2011 (3) KLT 192. The Appeals are preferred against the common judgment of the learned Single Judge dismissing W.P.(C) No. 13288, 13407, 13818, 14457, 14512, 16676 and 15013 of 2011. Appellants are the petitioners in W.P.(C) 13288 and 13818 of 2011. It is submitted that other petitioners had not chosen to prefer any appeal. By a notification, copy of which was produced as Ext.P2 in W.P.(C) 13288/2011, the 1st respondent, in supersession of its earlier notification, Ref:043/IRDA/DE-Tariff/January-07 Dated 23.1.2007 revised premium rates for third party liability only cover in respect of the motor vehicles with effect from 25.4.2011. Assailing Ext.P2, the Writ Petitions were filed. Ext.P2 was assailed on three grounds; (i) regarding the jurisdiction of the 1st respondent to issue a notification like Ext.P2, (ii) denial of opportunity of hearing the petitioners/appellants and (3) the extent of the enhancement of the insurance premium.

2. The learned Single Judge having heard either side arrived at a conclusion that Ext.P2 is well within the powers of the first respondent under S.14(2)(i) of the Insurance Regulatory and Development Authorities Act (herein after referred to as the ‘IRDA Act’) and that before issuing Ext.P2, draft was published in the web site on 4.1.2011 inviting responses from the persons interested following which there were series of discussions with Transporters’ Association and Insurers. As regards the enhancement, it was found that the 1st respondent had conducted studies and evolved a formula for the revision of rights based on settled parameters as set out, namely, average claims cost for each class of vehicle, frequency of claims for each class of vehicle and Cost Inflation Index for the year of review. It was further found that it is a policy decision and that Court shall not interfere with such decision. Consequently, all the Writ Petitions were dismissed against which these two appeals are preferred.

3. We have heard the learned counsel appearing for the appellants as well as the standing counsel for respondents and perused the documents.

4. A reading of Ext.P2 would show that it was issued in exercise of the powers vested on the 1st respondent under S.14(2)(i) of the I.R.D.A. Act, 1999. For a correct appraisal of the dispute, it would be appropriate to read S.14 of the I.R.D.A. Act.

“14. Duties, Powers and Functions of Authority:

(1) Subject to the provisions of this Act and any other law for the time being in force, the Authority shall have the duty to regulate, promote and ensure orderly growth of the insurance business and re-insurance business.

(2) Without prejudice to the generally of the provisions contained in sub-section (1), the powers and functions of the Authority shall include,-

(a) issue to the applicant a certificate of registration, renew, modify, withdraw, suspend or cancel such registration;

(b) protection of the interests of the policy holders in matters concerning assigning of policy, nomination by policy holders, insurable interest, settlement of insurance claim, surrender value of policy and other terms and conditions of contracts of insurance;

(c) specifying requisite qualifications, code of conduct and practical training for intermediary or insurance intermediaries and agents;

(d) specifying the code of conduct for surveyors and loss assessors;

(e) promoting efficiency in the conduct of insurance business;

(f) promoting and regulating profession organizations connected with the insurance and re-insurance business;

(g) levying fees and other charges for carrying out the purposes of this Act;

(h) calling for information from, undertaking inspection of, conducting enquiries and investigations including audit of the insurers, intermediaries, insurance intermediaries and other organizations connected with the insurance business;

(i) control and regulation of the rates, advantages, terms and conditions that may be offered by insurers in respect of general insurance business not so controlled and regulated by the Tariff Advisory Committee under Section 64U of the Insurance Act, 1938 (4 of 1938).”

(rest omitted as not relevant)

Section 14(2)(i) would show that in addition to the general powers contained in sub-s.(1), the 1st respondent is vested with powers to issue orders regarding control and regulation of the rates, advantages, terms and conditions that may be offered by insurers in respect of general insurance business not so controlled and regulated by the Tariff Advisory Committee (second respondent) under S.64U of the Insurance Act, 1938. The learned counsel for the appellants would submit that by virtue of S.64UC, it is the authority of the 2nd respondent to issue orders from time to time to the extent it deems expedient, control and regulate the rates, advantages, terms and conditions that may be offered by insurers in respect of any risk or any class or category of risks, the rates, advantages, terms and conditions of which, in its opinion, it is proper to control and regulate, and any such rate, advantages, terms and conditions shall be binding on all the insurers. Sub-cl-3 of S.64U would show that the decision of the Advisory Committee shall be valid only after and to the extent it is ratified by the authority, the first respondent and that the powers of the first respondent is limited to ratification. According to the respondents, by a circular dated 4.12.2006, the second respondent decided not to fix the Tariff rates in respect of the insurance premiums. Therefore, according to the learned counsel, the second respondent is not in the field and the first respondent by virtue of S.14(2)(i) is the authority competent. Neither the Circular dated 4.12.2006 is produced before us not the legality or validity of the same is assailed. Adding to the above, we notice that the legality of the said Circular was subject matter before this Court at the instance of the appellants in W.A.No.953/2011 and this Court upheld the same vide decision in All Kerala Bus Operators Organisation and Anr. V. I.R.D.A. and Ors. (2007 (2) KLT 893). Therefore, the same issue is not liable to be agitated afresh, especially when no new grounds are urged to impeach the same. Therefore, their present plea is barred by the principle of res judicata. In the above circumstance, we find that it is not at all necessary to go into the question of validity or legality of the Circular dated 4.12.2006. That being the facts regarding the authority for fixing the tariff rates, we find that the second respondent is no more controlling or regulating the tariff rates. In that circumstance, the first respondent is empowered by S.14(2)(i) to determine the tariff rates. In addition to that, even if it is assumed that the second respondent is exercising powers under S.64UC their power is subject to the ratification by the first respondent. That means, the 1st respondent is the final authority in determining the tariff rate. Such being the powers of the first respondent, second respondent has only recommending power. Therefore, we agree with the learned Single Judge and find that the first respondent is the authority competent to issue the impugned Ext.P2 notification.

5. It is also pertinent to note that Ext.P2 was issued in supersession of the 1st respondent’s earlier notification issued in 2007. It was done in review. So long as the authority to issue earlier notification, which is now reviewed and revised, is assailed, the present challenge regarding the authority and competence lacks bona fide. We are justified to conclude so because if Ext.P2 is annulled what would survive is the earlier order issued by the 1st respondent for which the appellants have no objection. If that be so, the real grievance is only against the revised rate and not against the authority of the 1st respondent. The authority is now challenged only to make the pleadings voluminous and nothing but.

6. As regards the denial of opportunity, we find no merit in the submission because the impugned order itself would show that the draft was published in the website of the 1st respondent calling for responses and accordingly after receiving the responses the 1st respondent held series of discussions with the Transport Associations and Insurers. The appellants have no case that the first respondent had not published the draft in the website or that the appellants had made any representation and that despite their sending responses they were not called for discussions. Since the publishing of the draft in the website calling for responses from the affected parties is not disputed, the appellants contention that they were not given opportunity of being heard is devoid of merit. In a matter like this, it is rather impossible for hearing each and every affected party through out the country. It would suffice to publish the draft in the website calling for responses from the affected parties and in the event any party submits their responses they could be called for discussions. It is not at all necessary to send individual notices or to hear a party who had not sent any responses, responding to the draft. Therefore, the appellants have no locus standi to contend that opportunity of hearing was denied to them. A similar dispute has come up for consideration of the Apex Court in Joint Council of Bus Syndicate v. Union of India (AIR 1991 SC 1616). The Apex Court, held at para. 7 as follows:

“It is appropriate that the parties who are affected by the escalation of the tariff rate should be given a hearing. We agree that such a hearing cannot be personal in regard to every one in the field. That would be physical impossibility. Therefore, on zonal basis representations should be received and existing representations also could be taken into consideration and groupwise hearing should be afforded at all States’ or Union Territory Headquarters. The Tariff Advisory Committee may have sittings at these places and where the Headquarters of a State or Union Territory or two States are either at the same place or nearabout, they could be joined up for one set of hearing.”

We find that the same principle is applicable to the case on hand. Therefore, the second ground of attack against Ext.P2 order is also devoid of merits.

7. The last ground of attack is that extent of enhancement of tariff. Ext.P2 would show that the first respondent had taken into account the average claims cost for each class of vehicle, frequency of claims for each class of vehicle and Cost Inflation Index for the year of review. The formula for determining Annexure-1 tariff in Ext.P2 is given as Annexure-2. Though the appellants would contend that the tariffs determined as per Annexure-A1 is exorbitant, no material was placed before us to come to such a conclusion. It is not at all disputed that the tariff rates prevailing before Ext.P2 was determined four years back, that is in 2007. It is also not disputed that during the gap of four years there is inflation. There is increase in the value of essential commodities including value of vehicles. Normally there would be rise in the claims also. No material on record would show that the tariff rates now refixed is not in tune with the Cost Inflation Index or the claims cost for each class of vehicle, frequency of claims for each class of vehicle. Adding to that, since the appellants had not made any response to the draft published they cannot now be heard that the rates fixed is anyway exorbitant. No material is placed before us to interdict with Annexure-1 tariff rates and to refix. The learned Single Judge also took it as a policy decision after study conducted by the 1st respondent, in declining to interfere with the tariff. The learned Single Judge, in concluding so, had given reliance to the decisions in S. Narayana Iyer v. Union of India and Anr. (AIR 1976 SC 1986), Bihar State Electricity Board v. M/s. Usha Martin Industries and Anr. (AIR 1997 SC 2489), Balco Employees Union (Regd.) v. Union of India and Ors. (2002 (1) KLT SN 34 (C.No.41) SC=AIR 2002 SC 350) and Association of Industrial Electricity Users v. State of Andhra Pradesh and Ors. ((2002) 3 SCC 711). Those decisions are relating to the Telephone Tariff Rates and Electricity Tariff. Going by the decisions referred, we find that the learned Single Judge was correct in applying the dictum laid down by the Apex Court. No material is placed before us to conclude that even without a revision, insurance business can be run profitably. So also, there is nothing to conclude that the revised tariff rates are exploitive. In such circumstances, we have no option other than to conclude that revision was mandatory for the survival of the insurance business as contended by the respondents and that revision didn’t cross the line of reasonability. We find no reason to interfere with Ext.P2 or the judgment impugned. Writ Appeals are devoid of merits.

In the result, the Writ Appeals are dismissed as devoid of merits.


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