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Judgment
P.R. Ramachandra Menon, J.—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.
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).
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, particularly as to the maintainability, which led to posting of all these cases together for
detailed hearing and consideration.
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.
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 to the petitioners, stands vested with the
second respondent (TAC). Reference is made to the scope and power of the concerned respondents, as provided u/s 64UC of the Insurance Act
1938 and the one available u/s 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).
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 u/s ''64UC'' of the Insurance Act. Sub Section 3 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.
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 position, the first respondent / IRDA is very much competent to prescribe the rates, by virtue of the power u/s 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.
The powers and functions of the ''IRDA'' are dealt with u/s 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 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.
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 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.
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 u/s 146 of the said Act.
Requirements of Policies and limits of liability are specified u/s 147. The extent of defence for the Insurers in a claim involving 3rd party insurance is
much limited, as stipulated u/s 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.
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 u/s 64UC of the Insurance Act and that of the IRDA u/s 14 of the IRDA Act
were meticulously considered. As per the decision reported in 2007 (2) KLT 893 (All Kerala Bus Operators Organisation and another V. 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 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 u/s 14 of the IRDA Act.
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 u/s 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 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 V. 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 power / competence of the IRDA
fails.
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 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.
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 and Others Vs. Union of India (UOI) and Others and
National Insurance Co. Ltd. and Others, is of no avail.
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 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.
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 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.
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 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.
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 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. Narayan Iyer Vs. The
Union of India (UOI) and Another, . 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.
Similarly, it was further observed by the Apex Court in Bihar State Electricity Board and another Vs. M/s. Usha Martin Industries and another,
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, , alerting the Courts that,
there shall be no entry to the forbidden field. The legal position stands re-iterated in Association of Industrial Electricity Users Vs. State of Andhra
Pradesh and Others, 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.
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 declined and the Writ Petitions are dismissed accordingly.