High Court Kerala High Court

M/S New India Assurance Company … vs Sabharathnam @ Sabha Rathinam on 11 November, 2008

Kerala High Court
M/S New India Assurance Company … vs Sabharathnam @ Sabha Rathinam on 11 November, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 30059 of 2008(C)


1. M/S NEW INDIA ASSURANCE COMPANY LTD.,
                      ...  Petitioner

                        Vs



1. SABHARATHNAM @ SABHA RATHINAM,
                       ...       Respondent

2. P.S. THAHA, SALIM MANZIL, MUTTADA P.O.,

3. BASHEER S.M., S/O SAYED MOHAMMED,

4. THE PERMENANT LOK ADALATH FOR PUBLIC

                For Petitioner  :SRI.KKM.SHERIF

                For Respondent  :SRI.G.SUDHEER

The Hon'ble MR. Justice V.GIRI

 Dated :11/11/2008

 O R D E R
                                                          C.R.
                           V. GIRI, J.
                   -------------------------------
               WP(C).NO. 30059 & 30067 of 2008
                  ---------------------------------
        Dated this the 11th      day of November, 2008.

                            JUDGMENT

The New India Assurance Company challenges the awards

passed by the Permanent Lok Adalath for Public Utility Services

essentially on the ground that the said body had acted without

jurisdiction in proceeding to decide a claim petition filed by the

injured in a motor accident case, for compensation. Since the

contentions raised in these two writ petitions are common, they

have been heard together and are being disposed of by this

common judgment. I will refer to WPC.No.30059/2008, taken as

the leading case.

2. The first respondent met with an accident on

26.11.2005 when he was walking along the road and a car

owned by the second respondent and driven by the third

respondent hit him. He sustained serious injuries and he claimed

compensation to the tune of Rs.6 lakhs. He filed

OP.No.465/2007 before the 4th respondent which is the

WPC. 30059 and 30067 of /2008 2

Permanent Lok Adalath for Public Utility Services. On receipt of

summons from the Permanent Lok Adalath the petitioner

entered appearance and disputed the maintainability of the

petition. It was contended that the Permanent Lok Adalath

has no jurisdiction to adjudicate the matter under section 22C

(8) read with section 22D of the Legal Services Authorities Act

1987, (hereinafter referred to as the Act). The claimant and

the respondents were not able to come to a settlement.

Thereupon the Permanent Lok Adalath proceeded to adjudicate

the dispute and by Ext.P3 the claimant was permitted to realise

an amount of Rs.52,000/- from the petitioner, the third

respondent before the Permanent Lok Adalath with 9%

interest from the date of petition till realisation. This has been

challenged in this writ petition.

3. I heard learned counsel for the petitioner and the

learned counsel for the first respondent. The petitioner

contends that the Permanent Lok Adalath is established under

section 22B of the Act and exercises jurisdiction in respect of

one or more Public Utility Services. It does not exercise a

general jurisdiction and therefore it does have the powers to

WPC. 30059 and 30067 of /2008 3

adjudicate any dispute unless the dispute is in respect of one or

more public utility services. ‘Public utility service’ is defined

under section 22 A(b) of the Act and the claim made by the

injured or legal representatives of the deceased person, in a

petition claiming compensation for injuries suffered in a motor

accident, will not be a dispute touching upon the Insurance

service as defined under section 22 A(b) of the Act.

Consequently, the Permanent Lok Adalath was bereft of

jurisdiction to consider Ext.P1 or to pass an award in the

nature of Ext.P3, apparently on the premise that it is entitled to

adjudicate a claim petition for compensation, like a Motor

Accidents Claims Tribunal. In other words, the challenge

against the award Ext.P3 is on the ground that it is bereft of

jurisdiction.

4. Learned counsel for the respondents submits that the

Motor Vehicles Act inter alia provides for compulsory insurance

for any motor vehicle and consequently the claim by an injured

in a motor accident against the owner or driver of the vehicle

would also be a claim against the insurer and the dispute raised

in that behalf would charactorise itself as a dispute touching

WPC. 30059 and 30067 of /2008 4

upon the insurance service. He therefore contends that

Permanent Lok Adalath would have jurisdiction to decide a

claim petition filed by the injured in a motor accident case.

Alternatively, he submits, that such jurisdiction must be

vouchsafed in favour of the Permanent Lok Adalath atleast in

cases where the insurance company does not deny the

existence of a valid insurance coverage of the vehicle in

question, which was involved in the accident. I find that the

question raised in this regard is not traversed by any judgment

of the Supreme Court or this court. Therefore, I have

anxiously considered the issue.

5. Chapter VI-A of the Act was substituted by

amendment of the Legal Services Authorities Act brought about

in the year 2002. Section 22A (a) defines Permanent Lok

Adalath as one established under sub section (1) of section

22B. Section 22A (b) defines the Public Utility Services as

follows:-

“Public Utility Services” means any (i)

transport service for the carriage of

passengers or goods by air, road or water;

WPC. 30059 and 30067 of /2008 5

or (ii) postal, telegraph or telephone

service or (iii) supply of power, light or

water to the public by any establishment

or (iv) system of public conservancy or

sanitation (v) service in hospital or

dispensary (vi) insurance service.”

6. Section 22B provides for the establishment of a

Permanent Lok Adalath. Section 22B (1) reads as follows:

“22B(1) Notwithstanding anything

contained in section 19, the Central

Authority or as the case may be, every

State Authority shall, by notification,

establish Permanent Lok Adalats at such

places and for exercising such jurisdiction

in respect of one or more public utility

services and for such areas as may be

specified in the notification.”

7. Section 22C provides for cognizance of cases by

Permanent Lok Adalath. Section 22C provides that Permanent

Lok Adalath should permanently settle the points in dispute

between the parties and try to effect conciliation between

them. But a distinguishing feature in so far as the powers of

WPC. 30059 and 30067 of /2008 6

the Permanent Lok Adalath is concerned is what flows out of

section 22C(8) and the same reads as follows:-

“22D(8) Where the parties fail to reach

at an agreement under sub section (7),

the Permanent Lok Adalat shall, if the

dispute does not relate to any offence,

decide the dispute.”

8. In effect therefore where the parties fail to arrive at a

settlement, Permanent Lok Adalath is not rendered helpless

but is given the power to proceed to adjudicate the dispute as

such, subject to the condition that the dispute is not related to

any offence. A Lok Adalath constituted under Chapter VI

derives its jurisdiction to proceed to settle certain disputes only

when the parties agree for such settlement. In other words,

power of adjudication, dehors any submission made in this

behalf by the parties to the jurisdiction of the Lok Adalath, is

not contemplated in so far as the Lok Adalaths constituted

under Chapter VI of the Act are concerned. But a permanent

Lok Adalath is competent to decide contentious issues as well.

I also refer to the fact that section 22E of the Act provides that

an award passed by the Permanent Lok Adalath either on

WPC. 30059 and 30067 of /2008 7

merit or in terms of a settlement agreement shall be final and

binding on all the parties thereto and on persons claiming

under them. The award is deemed to be a decree of a civil

court and therefore can be executed in that behalf. (see

section 22E (3) and 5). I have referred to the above features

to understand the powers of adjudication therefore available to

a Permanent Lok Adalath. Obviously this cannot be inferred.

But a Lok Adalath and a permanent Lok Adalath would only be

vouchsafed with powers strictly in consonance with the

statutory powers providing for their establishment and laid

down in that behalf. It cannot be gainsaid that Permanent

Lok Adalaths are entitled to only deal with such disputes which

touch upon “public utility services”. The term is defined under

section 22A (b) of the Act. What is really considered in the

present case is the scope of the provision “public utility

services” in so far as it mentions the term “insurance service”.

It would have been ideal if the legislature had defined

insurance service for the purpose of ascertaining the limits of

jurisdiction of the Permanent Lok Adalath in that regard. But

it has not been done and therefore it would be necessary to

WPC. 30059 and 30067 of /2008 8

refer to similar terms as they are defined in statutes covering

the same field. The Insurance Act 1938 does not define an

insurance service but significantly it defines Life Insurance

business, Marine Insurance business, General insurance

business and Fire insurance business. Life Insurance business

is defined under section 2(11) of the Insurance Act. The same

reads as follows:-

“2(11). Life Insurance business means

the business of effecting contracts of

insurance upon human life, including

any contract whereby the payment of

money is assured on death (except

death by accident only) or the

happening of any contingency

dependent on human life, and any

contract which is subject to payment of

premiums for a term dependent on

human life and shall be deemed to

include –

(a) the granting of disability and double

or triple indemnity accident benefits, if

so provided in the contract of insurance.

(b) the granting of annuities upon

human life and

WPC. 30059 and 30067 of /2008 9

) the granting of superannuation

allowances and annuities payable out of

any fund applicable solely to the relief

and maintenance of persons engaged or

who have been engaged in any

particular profession, trade or

employment or of the dependents of

such persons. “

9. What is therefore indicated by Life Insurance Business

as defined is the business of effecting contracts of insurance

upon human life. It can also include any contract which

assures the payment of money on death or other contingencies

as well. The Insurance would therefore depend upon a

bilateral agreement between the insurer and the insured.

Once there is a contract of insurance, the insurance company

may be called upon to render insurance service. A service

rendered by an insurer, as part of it’s activities would be called

as insurance service. The term insurance service as defined

under section 22 A(b) (vi) of the Legal Services Authorities Act

could be judged in the said context. Insurance Service is

WPC. 30059 and 30067 of /2008 10

treated as a part of the public utility service and therefore

what is contemplated by section 22 A(b)(vi) read with section

22 B in so far as the public utility service touching upon the

insurance business is concerned, is a dispute arising out of the

insurance business carried on by the insurance company.

There are several disputes which arise between the insured and

the insurer, for example dispute arising on account of

deficiency in service rendered by the insurance company.

Obviously such dispute would fall within the purview of section

22 A (b)(vi) read with section 22B and would therefore be

comprehended by the powers of the Permanent Lok Adalath.

10. The crucial question is whether the claim petition filed

by the first respondent would also be a claim within the ambit

of “insurance service”. The term is not defined under the Legal

Services Authorities Act. A dispute raised by an injured or for

that matter a legal heir of deceased person claiming

compensation arising out of a motor accident cannot be

construed as one essentially touching upon the insurance

service rendered by the insurance company. One has to

understand the legislative background relating to establishment

WPC. 30059 and 30067 of /2008 11

of Motor Accidents Claims Tribunals as specialised Tribunals to

deal with claims arising out of motor accidents. Therefore,

prior to the establishment of Motor Accident Claims Tribunals,

the claim for compensation was dealt with by courts of general

jurisdiction. On establishment of MACTs, the jurisdiction

exercised by the civil courts came to be exercised by the

specialised Tribunal. The MACTs are therefore established as

specialised Tribunals under the provisions of the Motor

Vehicles Act. That claims similar to those filed by the first

respondent herein are obviously cognizable by the MACT

established under the Motor Vehicles Act is not disputed by any

party concerned. A claim by the injured in a motor accident is

only a claim for compensation filed by the injured who has

suffered from a tortious act of another person. A tortious act

gives rise to claim for damages, by a person who has suffered

from the act. Inspite of the fact that the claim is adjudicated

by Tribunals, the essence of a claim petition filed under section

166 or 163-A of the Motor Vehicles Act is nothing but a claim

for compensation filed by a person who has suffered at the

hands of a tortfeasor. Therefore what is to be first

WPC. 30059 and 30067 of /2008 12

adjudicated in such a claim petition under section 166 of the

Motor Vehicles Act is whether the vehicle in question was

driven by the driver in a rash and negligent manner. Whether

the claimant was a joint tortfeasor and whether there was

composite negligence are also matters which will come up for

consideration. If the court finds that the accident occurred on

account of the negligence of the driver of the vehicle, then the

claimant is entitled to compensation. But this is a matter for

adjudication by a court on an aspect which essentially involves

a claim by an injured person against a tortfeasor and that, in

my view is not comprehended by the term “insurance service”

as occurring in section 22 A(b)(vi) of the Legal Services

Authorities Act. In other words, a dispute which comes into

existence from a claim petition filed by the injured in a motor

accident is not a dispute touching upon “insurance service” for

the purpose of chapter VI-B of the Legal Services Authorities

Act.

11. What would therefore be a dispute touching upon

insurance service for the purpose of the Act. In my view, they

would essentially comprehend disputes arising between the

WPC. 30059 and 30067 of /2008 13

insurer and the insured. That would include cases of

repudiation by the insurer and claims of inadequacy of service

rendered by the insurer. Learned counsel for the first

respondent submits that it may not be safe to restrict cases of

disputes relating to insurance service as coming under the

Legal Services Authorities Act to cases where disputes arise

under the contract of insurance. He refers to the Public

Liability Insurance Act 1991 which provides for public liability

insurance for the purpose of providing immediate relief to the

persons affected by accidents occurring while handling any

hazardous substance and for matters connected therewith or

incidental thereto. It provides for an obligation on the part of

the industrial undertaking to give such reliefs as is specified in

the schedule to the Act whenever there occurs death or injury

to any person or damage to any property resulting from an

accident. Section 4 of the said Act obliges the owner to take

out a policy. Section 6 of the Act provides for an application

for claim for relief to be made to the Collector and an award of

relief by the Collector in terms of section 7. The Collector is

vouchsafed the powers of the civil court in terms of section 5

WPC. 30059 and 30067 of /2008 14

of the Act. But a claimant for compensation arising from a

motor vehicle accident under the Motor Vehicles Act does not

enjoy a similar privilege. Even the facility for a fixed amount

relating to “No fault liability” is only by way of an interim relief

in a regularly instituted petition for compensation, which if

contested, would obviously require proof of negligence by the

tortfeasor as the basis for an award. Thus the situation in

relation to claim for compensation under the Motor Vehicles

Act stands on a different footing and the crucial distinction is

evident from section 3(2) of the Public Liability Insurance Act

1991 which reads as follows:-

“3(2) In any claim for relief under sub

section (1) hereinafter referred to in

this Act as claim for relief), the

claimant shall not be required to plead

and establish that the death, injury or

damage in respect of which the claim

has been made was due to any

wrongful act, neglect or default of any

person. “

12. The discussion made above leads me to the

WPC. 30059 and 30067 of /2008 15

conclusion that a Permanent Lok Adalath would be bereft of

jurisdiction to decide a claim petition filed by a claimant arising

out of a motor accident. As the statutory position currently

obtains only the Tribunals constituted under the Motor Vehicles

Act have jurisdiction to decide such cases. The Permanent Lok

Adalath was devoid of jurisdiction to entertain Ext.P1

complaint or pass Ext.P3 order.

13. For all these reasons, I find the petitioner is entitled

to succeed. The writ petition is allowed. Ext.P3 order passed

by the Permanent Lok Adalath is set aside. On a query made

by me, the learned counsel for the petitioner the insurance

company submits that they have approached this court

essentially for a decision on the question of jurisdiction of the

Permanent Lok Adalath and that in the circumstances the

company has decided to pay the compensation as awarded by

the Permanent Lok Adalath as per Ext.P3. This, he undertakes

to do so within a period of two months from today.

V. GIRI, JUDGE.


Pmn/

WPC. 30059 and 30067 of /2008    16