IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 22ND JUNE 2011 / 1ST ASHADHA 1933 WP(C).No. 13288 of 2011(I) -------------------------------------- PETITIONER(S): ---------------------- 1. KERALA STATE PRIVATE BUS OPERATORS FEDERATION, REPRESENTED BY ITS GENERAL SECRETARY, LAWRENCE BABU, BEACH ROAD, KOLLAM. 2. LIMITED STOP STAGE CARRIAGE OPERATORS ASSOCIATION, REPRESENTED BY ITS PRESIDENT V.J. SEBASTIAN, MARKAZ COMPLEX, MAVOOR ROAD, KOZHIKODE. BY ADV. SRI.M.RAMESH CHANDER. RESPONDENT(S): ------------------------- 1. INSURANCE REGULATORY AND DEVELOPMENT AUTHORITY, REP. BY THE CHAIRMAN, PARISHRAMA BHAVANAM, 6-9-58 B, 3RD FLOOR, BASHEER BAGH, HYDERABAD - 500 004. 2. THE TARIFF ADVISORY COMMITTEE, REP. BY ITS SECRETARY, ADOR HOUSE, IST FLOOR, 6A DUBASH MARG, MUMBAI - 400 023. 3. THE NEW INDIA ASSURANCE CO. LTD., REP. BY ITS CHAIRMAN AND MANAGING DIRECTOR 190, ANNA SALAI, CHENNAI - 600 006. 4. THE NATIONAL INSURANCE CO. LTD., REP. BY ITS CHAIRMAN AND MANAGING DIRECTOR, 779A, ANNA SALAI, CHENNAI - 600 002. 5. THE ORIENTAL INSURANCE CO. LTD., REP. BY ITS CHAIRMAN AND MANAGING DIRECTOR, ORIENTAL HOUSE, A 25/27 ASAF ALI ROAD, NEW DELHI - 110 007. 6. THE UNITED INDIA INSURANCE CO. LTD., REP. BY ITS CHAIRMAN AND MANAGING DIRECTOR, 24 WHITES ROAD, CHENNAI - 600 014. R1 & R2 BY ADV. SRI.K.L. NARASIMHAN, SC, SRI.N. KRISHNA PRASAD. R3 TO R6 BY ADV. MR.P.K. MANOJKUMAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/06/2011, ALONG WITH WP(C) NO. 13818 OF 2011 AND CONNECTED CASES, THE COURT ON 22/06/2011 DELIVERED THE FOLLOWING: WP(C).No. 13288 of 2011(I) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE REGISTRATION CERTIFICATE OF FIRST PETITIONER DATED 29/12/1993. EXT.P2: COPY OF THE NOTIFICATION NUMBER IRDA/NL/NTFN/MOTP/066/04/2011 DATED 15/04/2011. EXT.P3: COPY OF THE INTERIM ORDER PASSED BY THE HIGH COURT OF MADRAS IN M.P.2/2011 IN WP(C) NO. 10908/2011 DATED 27/04/2011. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE rs (CR.) P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P (C) Nos . 13288, 13407,13818, 14457, 14676, 14512, and 15013 of 2011 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 22nd June , 2011 JUDGMENT This batch of writ petitions pertains to a common cause, being aggrieved of Ext. P2 notification (Exhibits referred to as given in W.P. (C) 13288 of 2011) issued by the first respondent / Insurance Regulatory and Development Authority (IRDA in short), declaring the rates of insurance premium in respect of the motor third party insurance, to be made applicable w.e.f 25.04.2011. Challenge is mainly with regard to the power and jurisdiction of the first respondent, denial of opportunity of hearing to the petitioners and also in respect of the extent of enhancement. W.P. (C) Nos. 13288 of 2011 & connected cases : 2 : 2. The petitioners are various associations, representing the Stage carriage operators, Contract carriage operators, Tourist bus operators, Car and taxi operators, Lorry and other goods carriage operators in the State. The common contention is that, as per Ext. P2 issued by the first respondent / IRDA, the rates on motor third party premium have been enhanced to an exorbitant extent, in a quite arbitrary manner, that too, without any involvement of the 2nd respondent / Tariff Advisory Committee (TAC in short). 3. W.P (C) No. 13288 of 2011 stands admitted on 10.05.2011 by the vacation Court, also granting interim stay as prayed for. The service is complete in the said case. The other writ petitions came up for consideration before this Court, on re- opening the Court, after the mid-summer vacation, when one of such cases was heard in detail, W.P. (C) Nos. 13288 of 2011 & connected cases : 3 : particularly as to the maintainability, which led to posting of all these cases together for detailed hearing and consideration. 4. The arguments on behalf of the petitioners were led by Mr. Ramesh Chander, the learned counsel for the petitioner in W.P (C) 13288 of 2011, supported by the learned counsel for the petitioners in the other cases as well. Respondents 1 and 2 were represented by the learned counsel Mr. N. Krishna Prasad; while the other respondents (Insurance Companies in the public sector) were represented by the learned counsel Mr. P.K. Manoj Kumar. 5. Mr. Ramesh Chander, the learned counsel for the petitioners submitted that, the petitioners would like to emphasize the lack of jurisdiction on the part of the first respondent (IRDA) to have issued Ext. P2 notification, which power, according W.P. (C) Nos. 13288 of 2011 & connected cases : 4 : to the petitioners, stands vested with the second respondent (TAC). Reference is made to the scope and power of the concerned respondents, as provided under Section 64UC of the Insurance Act 1938 and the one available under Section 14 of the Insurance Regulatory and Development Authority Act, 1999. With regard to the loss of opportunity of hearing, it is stated that, none of the petitioners Associations in Kerala was given any opportunity of hearing before Ext. P2 notification was issued and as such, they did not get any chance to bring the actual facts and figures to the notice of the first respondent (IRDA). 6. All the learned counsel for the petitioners submit that, the power to fix the tariff rates stands exclusively vested upon the second respondent / Tariff Advisory Committee as provided under Section '64UC' of the Insurance Act. Sub Section 3 W.P. (C) Nos. 13288 of 2011 & connected cases : 5 : of Section 64UC stipulates that, every decision of the Tariff Advisory Committee, shall be valid only after and to the extent it is ratified by the Authority (IRDA) and every such decision shall take effect from the date on which it is so ratified by the Authority or if the Authority so orders in any case, from such earlier date, as specified in the order. By virtue of the said provision, it is pointed out that, the primary authority, who is vested with the power to fix the rates of insurance premium is the 'Tariff Advisory Committee' and the power vested with the 'IRDA' is stated as only the power of 'ratification'. Admittedly since Ext.P2 notification has been issued by the first respondent / IRDA, without any involvement of the 'TAC', the same is sought to be interfered, simultaneously, pressing the other grounds as well. W.P. (C) Nos. 13288 of 2011 & connected cases : 6 : 7. The learned standing counsel appearing for the respondents 1 and 2 and the learned counsel for the Insurance Companies, however, sought to rebut the above contention, stating that, the idea and understanding of the petitioners are thoroughly wrong and misconceived, in so far as the Tariff Advisory Committee has already issued a 'Circular' dated 04.12.2006, withdrawing the tariff rates and leaving the particular class of business with respect to the rates, terms, conditions and regulations for Fire, Engineering, Motor and Workmen's compensation business and other classes of business currently under tariffs, to be regulated directly by the 'IRDA' from 01.01.2007. The said Circular still stands and as such, after 01.01.2007, fixation of rates does not come within the purview of the Tariff Advisory Committee in respect of the specified classes of business. This being the W.P. (C) Nos. 13288 of 2011 & connected cases : 7 : position, the first respondent / IRDA is very much competent to prescribe the rates, by virtue of the power under Section 14 of the IRDA Act 1999, submits the learned counsel. Ext. P2 notification is stated as issued, after publishing the draft notification, inviting objections and after several rounds of discussions with all concerned. 8. The powers and functions of the 'IRDA' are dealt with under Section 14 of the IRDA Act 1999. The alleged denial of the opportunity of hearing is sought to be rebutted, stating that, the draft publication was effected in the 'website' of the IRDA, that all the parties who submitted the recommendations / objections were heard (including the representations of other similarly situated Associations) and that the petitioners had never responded to the said notification by submitting any recommendations or objections. The rates prescribed W.P. (C) Nos. 13288 of 2011 & connected cases : 8 : by the first respondent / IRDA are still on the lower side and that the fixation of rate is a 'policy matter', where no interference is possible by this Court, adds the learned counsel appearing for the respondents. 9. It is contended on behalf of the respondents that the rates have been prescribed on the basis of the settled parameters, built into the formula evolved by the IRDA with with reference to - (1) average claims cost for each class of vehicle (2) frequency of claims for each class of vehicle and (3) Cost Inflation Index for the year of review. As a matter of fact, the earlier rates were prescribed nearly 4 years ago and the 'claim ratio' got mounted up, taking the same to 153 % in previous year; while the projected figure in respect of the present year was 197 %. In spite of substantiating the facts and figures before the IRDA by the Insurers, the figure W.P. (C) Nos. 13288 of 2011 & connected cases : 9 : reckoned by the IRDA was only the actual extent i.e. 153 % (previous year), so as to work out the rates accordingly. Going by the actual particulars, huge loss is being caused in the Motor Insurance segment, by virtue of the higher extent of liability being caused. It is stated that a minimum of 83 % increase is necessary to run the business on 'no profit no loss' basis, while the present enhancement is only to the extent 60 – 67 %, which cannot fill up the gap by itself and the Insurance Companies are finding the ways and means by falling back upon the premium procured from other heads of business. 10. The concept of 'Motor Third Party insurance' has to be viewed with reference to the statutory duty cast upon the Insurers to provide for such insurance as given in Chapter XI of the Motor Vehicles Act 1988. The necessity to have valid insurance is provided under Section 146 of the said W.P. (C) Nos. 13288 of 2011 & connected cases : 10 : Act. Requirements of Policies and limits of liability are specified under Section 147. The extent of defence for the Insurers in a claim involving 3rd party insurance is much limited, as stipulated under Section 149 (2). The Motor Third Party Premium notified as per Ext. P2 takes care of the risks in respect of 3rd parties, including third party property damage, depending upon the nature of the vehicle and other relevant parameters. 11. The power and competence of the first respondent / IRDA in prescribing the rates of Motor 3rd party insurance had come up for consideration before this Court in connection with the previous exercise pursued in the year, 2007 as well. The rival contentions, with reference to the power of the second respondent / TAC stipulated in this regard under Section 64UC of the Insurance Act and that of the IRDA under Section 14 of the IRDA Act W.P. (C) Nos. 13288 of 2011 & connected cases : 11 : were meticulously considered. As per the decision reported in 2007 (2) KLT 893 (All Kerala Bus Operators Organisation and another Vs. IRDA and others), it was observed that, by virtue of the Circular dated 04.12.2006, the Tariff Advisory Committee had withdrawn from the function in prescribing the rates in respect of the motor tariff and such other items, leaving the field open to be dealt with by the 'IRDA', by virtue of which, Section 14 of the IRDA Act came to be operative, enabling the IRDA to stipulate such rates. In the said circumstances, the notification issued by the IRDA, prescribing the rates of Motor Third Party Premium in the year 2007 was upheld and the writ petitions were dismissed. There is no case for the petitioners that the second respondent / TAC has withdrawn the Circular No. TAC / 7 / 2006 dated 04.12.2006, which still governs the field. This W.P. (C) Nos. 13288 of 2011 & connected cases : 12 : being the position, there cannot be any successful challenge with regard to the competence of the first respondent / IRDA in issuing Ext. P2 notification, invoking the power under Section 14 of the IRDA Act. 12. There is a contention for the petitioners that, it is never possible for the second respondent / TAC to withdraw itself or abstain from exercising the statutory duty cast upon the TAC in fixing the tariff as provided under Section 64UC and in turn, it is not open to the first respondent / IRDA to have assumed the role of TAC. It cannot be a matter of dispute that the rates fixed by the 'TAC' are to be approved by the 'IRDA' and it will have effect only on such approval and ratification by the said authority as specified under sub Section 3 of Section 64UC. The wordings of Section 64UC are very much relevant, which clearly stipulate that the power vested with the TAC in this regard is “to the W.P. (C) Nos. 13288 of 2011 & connected cases : 13 : extent it deems expedient”, so as to control and regulate the rates. By issuing Circular dated 04.12.2006, the TAC thought it not expedient to control and regulate the rates any further, which in turn was left out to be dealt with directly by the IRDA, leading to the notification issued by the IRDA in the year 2007, revising the previous rates. This was upheld by this Court as per the decision reported in 2007 (2) KLT 893 (All Kerala Bus Operators Organisation and another Vs. IRDA and others). Since the position has not undergone any change as on this day, it cannot but be held that the second respondent / TAC has not found it expedient to control or regulate the rates in respect of the 'Motor Third Party Premium'. As such, the power is well vested with the first respondent / IRDA, who in turn has issued Ext. P2 notification and the challenge raised against the W.P. (C) Nos. 13288 of 2011 & connected cases : 14 : power / competence of the IRDA fails. 13. With regard to the plea as to the denial of opportunity of hearing to the petitioners (before issuance of Ext. P2 notification), as discernible from Ext. P2 itself, the said notification was issued only after much deliberations. A draft of the revision of rates was published in the 'website' of the IRDA on 04.01.2011, inviting objections / suggestions / recommendations from different corners. On receipt of the responses in this regard, the first respondent / IRDA held a series of discussions with the Transporters' Associations and Insurers. The suggestions / objections received were considered in detail, with reference to the relevant parameters of the formula; as to (1) the average claims cost for each class of vehicle (2) frequency of claims for each class of vehicles and (3) Cost Inflation Index for the year of review. It W.P. (C) Nos. 13288 of 2011 & connected cases : 15 : was thereafter, that the proceedings were finalized and the rates were notified as per Ext. P2 dated 15.04.2011, so as to be effective from 25.04.2011. 14. The fact that the draft was published in the 'website' inviting objections is not disputed by the petitioners. They have no case that any suggestion / recommendation / objection was ever submitted in response to such publication or that any such recommendation made by them was not considered. In the absence of any such objection / recommendation, the petitioners cannot be heard to say that, they were denied of an effective opportunity of hearing before the proceedings were finalized as per Ext. P2. As it stands so, the reliance sought to be placed on paragraph 7 of the decision rendered by the Apex Court in Joint Council of Bus Syndicate Vs. Union of India (AIR 1992 SC 1616) is of no avail. W.P. (C) Nos. 13288 of 2011 & connected cases : 16 : 15. Coming to the correctness and sustainability of the rates now notified as per Ext. P2, it is to be primarily noted that, the first respondent / IRDA is an 'Expert Body' in this regard, who has finalized the rates, based on a clear cut formula and with reference to the actual facts and figures, after considering the objections / suggestions / recommendations preferred by the parties concerned; after several rounds of discussions. There is no challenge as to the constitutional validity of the 'Authority' or as to the credentials of the 'Experts' in this regard. The prescription of rates is obviously based on the relevant parameters as mentioned in Ext. P2 itself. Further, the last revision effected was in the 2007 and by this time, cost escalation has gone to sizable extent in almost all spheres, which includes the insurance segment as well. Similarly, the extent of liability fixed on W.P. (C) Nos. 13288 of 2011 & connected cases : 17 : the Insurers in the Third Party Claims also got substantially mounted up, by virtue of higher 'multiplicand' being adopted and such other relevant factors leading to higher Awards by the Motor Accident Claim Tribunals; enhancements awarded by the High Courts in Appeals and also by the Apex Court in appropriate cases. 16. It is pointed out from the part of the Insurers (who belong to the 'public sector'), that no Insurance Companies in the 'private sector' doing general insurance business (such as Royal Sundaram Insurance Company, Bajaj Insurance Company, Reliance Insurance Company, Tata Insurance Company, HDFC ERGO General Insurance Company Ltd., ICICI Lombard Ltd., Shri Ram General Insurance Co. Ltd, Cholamandalam Insurance Company) are included in the part array, though they also stand covered by Ext. P2 notification issued by the IRDA. It is asserted W.P. (C) Nos. 13288 of 2011 & connected cases : 18 : from the part of the Insurers on record, that the 'adverse claim ratio' of the last year was 153 %, while that of the projected year was 197 %, whereas the IRDA has taken the figure only in respect of the last year i.e. 157 %. It is also pointed out that to run the show in the Third Party Insurance field on 'no profit no loss basis', a uniform enhancement @ 83 % is necessary, despite which, the enhancement provided as per Ext. P2 is only to an extent of about 62.685 % (on average) and there is huge loss even now in the Motor sector, which is being recouped by virtue of the business income from other sources. 17. As mentioned already, much cost escalation has been resulted during the past 4 years, in almost all the fields leading to enhancement of 'Transportation charges' payable to the petitioners as well. Motor Insurance Sector alone cannot be an W.P. (C) Nos. 13288 of 2011 & connected cases : 19 : exception and appropriate rates have to be fixed by the concerned authority, so as to strike a balance, lest, it should lead to undesirable results, virtually affecting the existence / running of the concerned respondent Companies in the General Insurance field. No matter, to tap wine from a source, but care has to be taken to see that the source itself is not let to be dried up. In so far as the challenge against the power and competence of the first respondent / IRDA to fix the rates of premium payable and as to the alleged loss of opportunity of hearing fails, nothing further remains to be adjudicated in these writ petitions. 18. However, it may be doubted, whether the 'extent of hike' as now sought to be implemented vide Ext. P2 is justified or not. But this is purely a matter to be left to the 'Expert body' who have considered all the relevant materials and the W.P. (C) Nos. 13288 of 2011 & connected cases : 20 : objections / recommendations raised from the different corners before the same was finalized as per Ext. P2. This is also liable to be treated as a 'Policy decision', over which, there cannot be any transgression from the part of this Court, in view of the law declared by the Constitution Bench of the Apex Court in S. Narayana Iyer Vs Union of India and another (AIR 1976 SC 1986). In the said case challenging the reasonableness of the Telephone Tariff Rates, the Apex Court observed that the Courts have no jurisdiction under Article 226 to go in to reasonableness of rates, that the rates are decided as a 'Policy matter' in fiscal planning, involving a legislative prescription of the rates and adding that, the rates are a matter for legislative judgment and not for judicial determination. W.P. (C) Nos. 13288 of 2011 & connected cases : 21 : 19. Similarly, it was further observed by the Apex Court in Bihar State Electricity Board Vs. M/s Usha Martin Industries and another (AIR 1997 SC 2489) in connection with fixation of Electricity Tariff, that the pricing is a matter of 'Policy' and it was for the Electricity Board and State to decide the rate at which the electricity was to be supplied. It was also observed that, under no circumstances, can the Court lay down, what should be the proper price and direct the Board to reduce its tariff, which otherwise will definitely exceed the jurisdiction of the Court. The distinct limit up to which a Court can proceed was further made clear in BALCO Employees Union (Regd.) Vs. Union of India and others ( AIR 2002 SC 350), alerting the Courts that, there shall be no entry to the forbidden field. The legal position stands re- iterated in Association of Industrial Electricity W.P. (C) Nos. 13288 of 2011 & connected cases : 22 : Users Vs. State of Andra Pradesh and others (2002 (3) SCC 711) that the High Court has only to be satisfied that proper procedure has been followed and it would not interfere unless the decision in question, on the face of it, is shown to be arbitrary, illegal or contrary to the Act. Following the mandate as above, interference was declined in similar circumstances by the Karnataka High Court as well, while dismissing the writ petition No. 2980 of 2007 as per judgment dated 12.10.2007, filed against the enhancement of the insurance premium rates notified on the last occasion, in the year 2007. 20. In the above facts and circumstances, this Court finds that, these writ petitions are devoid of any merit and none of the grounds raised in support of the same does serve its purpose. Interference is W.P. (C) Nos. 13288 of 2011 & connected cases : 23 : declined and the Writ Petitions are dismissed accordingly. P. R. RAMACHANDRA MENON, JUDGE kmd