{"id":152943,"date":"2010-09-27T00:00:00","date_gmt":"2010-09-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/s-selvi-vs-the-branch-manager-on-27-september-2010"},"modified":"2016-02-11T06:52:39","modified_gmt":"2016-02-11T01:22:39","slug":"s-selvi-vs-the-branch-manager-on-27-september-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/s-selvi-vs-the-branch-manager-on-27-september-2010","title":{"rendered":"S.Selvi vs The Branch Manager on 27 September, 2010"},"content":{"rendered":"
Madras High Court<\/div>\n
S.Selvi vs The Branch Manager on 27 September, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 27\/09\/2010\n\nCORAM\nTHE HONOURABLE MR.JUSTICE K.CHANDRU\n\nW.P.(MD)NO.3283 of 2009\n\nS.Selvi\t\t\t\t..  Petitioner\n\nVs.\n\nThe Branch Manager,\nThe Oriental Insurance Company Ltd.,\nD.D.J. Centre, 1st Floor,\nOpp. To Vadasery Bus stand,\nNagercoil,\nKanyakumari District.\t\t\t..  Respondent\n\n\tThis writ petition has been preferred under Article 226 of the\nConstitution of India praying for the issue of a writ of mandamus to direct the\nrespondent to consider the representation of the petitioner, dated 1.12.2008.\n\n!For Petitioner \t... Mr.S.Saji Bino\n^For Respondent \t... Mr.K.Baskaran\n\n- - - -\n\n:ORDER\n<\/pre>\n
\tHeard both sides.\n<\/p>\n
\t2.The petitioner’s husband late Selvaraj, purchased a two wheeler (Bajaj
\nM-80) with registration No.TN 74-W 2072. It originally belonged to one L.Jose,
\nwho insured the vehicle with the respondent Insurance Company under Policy
\nNo.4544011\/2008\/10009. After purchase of the vehicle, an application was made
\nfor transfer of ownership of the vehicle borrowed on 22.10.2007. The name
\ntransfer of the vehicle was made in the R.C.Book on 24.10.2007 with effect from
\n22.10.2007.\n<\/p>\n
\t3.On 01.06.2008, the vehicle met with an accident, as a result of which
\nthe petitioner’s husband died. A case was registered in Crime no.162 of 2008 for
\nvarious offences under the IPC including Section 304-A IPC by the Arumanai
\nPolice Station, Kanyakumari District. The petitioner’s husband had a valid
\ndriving licence granted by RTO, Marthandam, dated 7.3.2008, which was valid till
\n24.12.2017. The vehicle was insured with the respondent Insurance company and
\nthe policy taken by the vehicle owner was valid from 18.10.2007 to 17.10.2008.
\nTherefore, at the time when the petitioner’s husband met with an accident on
\n1.6.2008, the policy was very much in home.\n<\/p>\n
\t4.As per the policy, it had premium of Rs.50\/- paid towards personal
\naccident of the owner driver. Therefore, the respondent insurance company was
\nliable to pay the insured amount towards the death of the petitioner’s husband,
\nwho was the driver of the vehicle in terms of the insurance policy taken for the
\nvehicle. But, it is an admitted case that the petitioner’s husband though got
\nname transfer in the RC Book regarding transfer of ownership, but did not ask
\nfor change of insurance policy. The petitioner sent a representation, dated
\n01.12.2008 claiming insurance amount towards personal accident coverage for the
\nvehicle. But since the said amount was not paid, she had filed the present writ
\npetition, seeking for a direction to consider her representation.\n<\/p>\n
\t5.When the matter came up on 18.04.2009, the petitioner was directed to
\nserve notice privately on the respondent Insurance Company. Accordingly, notice
\nwas issued to the respondent Company and it is represented by its counsel.  A
\ncounter affidavit, dated 9.9.2010 was also filed. In the counter affidavit, it
\nwas stated that the insurance policy stood in the name of the previous owner of
\nthe vehicle. But, no application was made in terms of Section 157 of the Motor
\nVehicles Act. As per the said provision, the transferee of the vehicle should
\napply within 14 days from the date of transfer in a prescribed form to the
\ninsurer for making necessary changes with regard to the fact of transfer in the
\nCertificate of the insurance and the policy described in the certificate in his
\nfavour and the insurer should make necessary changes in the certificate and the
\npolicy of the insurance in regard to the transfer of insurance. Even as per the
\nTariff General conditions GR 17, the transferee should apply within 14 days from
\nthe date of transfer in writing under recorded delivery to the insurer who had
\ninsured the vehicle with all relevant details.\n<\/p>\n
\t6.It is admitted that the policy was taken in the name of Jose for the
\nperiod from 18.10.2007 to 17.10.2008 and the premium of Rs.50\/- was paid for
\ncovering the risk of the owner of the vehicle. It is also admitted that there
\nwas name transfer in the RC Book on 22.10.2007. But no intimation was given to
\nthe Insurance company within 14 days from the date of transfer of the vehicle.
\nSince the accident had taken place after the name transfer in the RC book, but
\nwhich fact was not intimated to the insurance company and the policy was not
\ntransferred in the name of Selvaraj, the insurance company repudiated the claim
\nmade by the petitioner.\n<\/p>\n
\t7.When asked as to how the writ petition is maintainable, Mr.S.Saji Bino,
\nlearned counsel appearing for the petitioner contended that the respondent
\ninsurance company is a wholly owned Government of India undertaking and hence it
\nis amenable to the writ jurisdiction. He also stated that the conditions
\nstipulated in the insurance policy are statutory in character. Therefore, the
\nsame can be enforced in the writ jurisdiction under Article 226 of the
\nConstitution of India. In support of his contention, the learned counsel placed
\nreliance upon a judgment of the Supreme Court in LIC of India v. Consumer
\nEducation & Research Centre reported in  (1995) 5 SCC 482. He referred to the
\nfollowing passages found in paragraphs 23 and 24 from the said judgment, which
\nreads as follows:\n<\/p>\n
23. Every action of the public authority or the person acting in public interest
\nor any act that gives rise to public element, should be guided by public
\ninterest. It is the exercise of the public power or action hedged with public
\nelement (sic that) becomes open to challenge. If it is shown that the exercise
\nof the power is arbitrary, unjust and unfair, it should be no answer for the
\nState, its instrumentality, public authority or person whose acts have the
\ninsignia of public element to say that their actions are in the field of private
\nlaw and they are free to prescribe any conditions or limitations in their
\nactions as private citizens, simpliciter do in the field of private law. Its
\nactions must be based on some rational and relevant principles. It must not be
\nguided by irrational or irrelevant considerations. Every administrative decision
\nmust be hedged by reasons. The Administrative Law by Wade, 5th Edn. at p.513 in
\nChapter 16, Part IV dealing with remedies and liabilities, stated thus:
\n“Until a short time ago anomalies used to be caused by the fact that the
\nremedies employed in administrative law belong to two different families. There
\nis the family of ordinary private law remedies such as damages, injunction and
\ndeclaration; and there is a special family of public law remedies particularly
\ncertiorari, prohibition and mandamus, collectively known as the prerogative
\nremedies. Within each family the various remedies can be sought separately or
\ntogether or in the alternative. But each family had its own distinct procedure.”
\nAt p.514 it was elaborated that “this difficulty was removed in 1977 by the
\nprovision of a comprehensive, ‘application for judicial review’, under which
\nremedies in both facilities became interchangeable”. At p.573 with the heading
\n“Application for Judicial Review” in Chapter 17, it is stated thus:
\n“All the remedies mentioned are then made interchangeable by being made
\navailable ‘as an alternative or in addition’ to any of them. In addition, the
\ncourt may award damages if they are claimed at the outset and if they could have
\nbeen awarded in an ordinary action.”\n<\/p>\n
The distinction between private law and public law remedy is now settled by this
\nCourt in LIC v. Escorts Ltd.13 by a Constitution Bench thus: (SCC p.344, para\n<\/p>\n
102)
\n“If the action of the State is related to contractual obligations or obligations
\narising out of the tort, the court may not ordinarily examine it unless the
\naction has some public law character attached to it. Broadly speaking, the court
\nwill examine actions of State if they pertain to the public law domain and
\nrefrain from examining them if they pertain to the private law field. The
\ndifficulty will lie in demarcating the frontier between the public law domain
\nand the private law field. It is impossible to draw the line with precision and
\nwe do not want to attempt it. The question must be decided in each case with
\nreference to the particular action, the activity in which the State or the
\ninstrumentality of the State is engaged when performing the action, the public
\nlaw or private law character of the action and a host of other relevant
\ncircumstances.”\n<\/p>\n
24. In Dwarkadas Marfatia & Sons v. Board of Trustees of the Port of Bombay14<\/a> it
\nwas held that the Corporation must act in accordance with certain constitutional
\nconscience and whether they have so acted must be discernible from the conduct
\nof such Corporations. Every activity of public authority must be informed by
\nreasons and guided by the public interest. All exercises of discretion or power
\nby public authority must be judged by that standard. In that case when the
\nbuilding owned by the port trust was exempted from the Rent Act, on terminating
\nthe tenancy for development when possession was sought to be taken, it was
\nchallenged under Article 226 that the action of the port trust was arbitrary and
\nno public interest would be served by terminating the tenancy. In that context,
\nthis Court held that even in contractual relations the Court cannot ignore that
\nthe public authority must have constitutional conscience so that any
\ninterpretation put up must be to avoid arbitrary action, lest the authority
\nwould be permitted to flourish as imperium in imperio. Whatever be the activity
\nof the public authority, it must meet the test of Article 14 and judicial review
\nstrikes an arbitrary action.\n<\/p>\n
\t8.It is not clear as to how the said judgment will be of any assistance to
\nthe petitioner. In the very same judgment, it has been also held that it was not
\nenforcing any terms and conditions in the insurance policy, but only dealt with
\nthe eligibility condition which is not conforming with the constitutional
\nprinciple evolved in part IV and excluded the larger segment of public from the
\ncoverage. The following passages found in paragraphs 47, 52 and 53 of the said
\njudgment may be usefully extracted below:\n<\/p>\n
47. It is, therefore, the settled law that if a contract or a clause in a
\ncontract is found unreasonable or unfair or irrational, one must look to the
\nrelative bargaining power of the contracting parties. In dotted line contracts
\nthere would be no occasion for a weaker party to bargain or to assume to have
\nequal bargaining power. He has either to accept or leave the services or goods
\nin terms of the dotted line contract. His option would be either to accept the
\nunreasonable or unfair terms or forego the service for ever. With a view to have
\nthe services of the goods, the party enters into a contract with unreasonable or
\nunfair terms contained therein and he would be left with no option but to sign
\nthe contract.\n<\/p>\n
52. It is seen that the respondents are not seeking any direction in their
\nfavour to call upon the appellants to enter into a contractual relation of term
\npolicy in Table 58. Their privilege and legitimate expectation to seek
\nacceptance of policy of life insurance are their freedom. Instead they sought
\nfor a declaration that the policy confining to only salaried class from
\nGovernment, semi-Government or reputed commercial firms is discriminatory
\noffending Article 14. Denial thereof to larger segments violates their
\nconstitutional rights. We are of the considered view that they are right. They
\nare not seeking any mandamus to direct the appellants to enter into contract of
\nlife insurance with them. The rest of the conditions, age, etc., are valid and
\ndo not call for interference. The offending clause extending the benefit only to
\nthe salaried class in Government, semi-Government and reputed firms is
\nunconstitutional. Subject to compliance with other terms and conditions, the
\nappellant is free to enforce Table 58 policy with all eligible lives. The
\ndeclaration given, therefore, is perfectly valid. The offending part is
\nseverable from the rest of the conditions.\n<\/p>\n
53. We have, therefore, no hesitation to hold that in issuing a general life
\ninsurance policy of any type, public element is inherent in prescription of
\nterms and conditions therein. The appellants or any person or authority in the
\nfield of insurance owe a public duty to evolve their policies subject to such
\nreasonable, just and fair terms and conditions accessible to all the segments of
\nthe society for insuring the lives of eligible persons. The eligibility
\nconditions must be conformable to the Preamble, Fundamental Rights and the
\nDirective Principles of the Constitution. The term policy under Table 58 is
\ndeclared to be accessible and beneficial to the large segments of the Indian
\nsociety. The rates of premium must also be reasonable and accessible.
\nAccordingly, we hold that the declaration given by the High Court is not
\nvitiated by any manifest error of law warranting interference. It may be made
\nclear that with a view to make the policy viable and easily available to the
\ngeneral public, it may be open to the appellants to revise the premium in the
\nlight of the law declared in this judgment but it must not be arbitrary, unjust,
\nexcessive and oppressive. Both the appeals are accordingly dismissed but in the
\ncircumstances parties are directed to bear their own costs.\n<\/p>\n
\t9.With reference to non compliance of Section 157(2) of the Motor Vehicles
\nAct, the petitioner merely contended that the vehicle was compulsorily insured
\nand therefore, so long as the death had occurred to the owner of the vehicle,
\nthe company is bound to honour the claim made by the legal heirs of the owner.
\nShe also stated that the respondent company should not indulge in technicalities
\nand they should really honour their commitments.\n<\/p>\n
\t10.The first submission made by the learned counsel for the petitioner,
\ni.e. maintainability of writ petition under Article 226 of the Constitution of
\nIndia is really a doubtful proposition. The policy taken by the owner of the
\nvehicle may contain several clauses over which there may be dispute which
\nrequires factual foundation. In case there is repudiation of terms, the
\ninsurance company may also lead counter evidence in support of their repudiation
\nof claim. Such factual dispute cannot be gone into in the writ jurisdiction
\nunder Article 226 of the Constitution. It is not as if the petitioner has no
\nremedy. She has remedy by way of civil suit or in alternative, before an
\nappropriate consumer forum for the alleged deficiency in service in not
\nhonouring the insurance claim. May be earlier the entire general insurance was
\nmade as State monopoly. But now that the general insurance has been widely
\nopened to private entrepreneurs including Multi National Companies whether
\nsimilar contentions will still be available is a doubtful proposition.\n<\/p>\n
\t11.Assuming that there was no factual dispute and the court will have to
\ndecide the legal entitlement, in the present case, even as per the admission of
\nthe petitioner, the statutory requirement under Section 157 was not complied
\nwith, which dis-entitled the petitioner from claiming such relief.\n<\/p>\n
\t12.In this context, it is necessary to refer to the judgment of the
\nSupreme Court in Complete Insulations (P) Ltd. v. New India Assurance Co. Ltd.<\/a>
\nreported in (1996) 1 SCC 221. In paragraphs 9 and 10, the Supreme Court held as
\nfollows:\n<\/p>\n
9. Section 157 appears in Chapter XI entitled “Insurance of Motor Vehicles
\nagainst Third Party Risks” and comprises Sections 145 to 164. Section 145
\ndefines certain expressions used in the various provisions of that chapter. The
\nexpression “Certificate of Insurance” means a certificate issued by the
\nauthorised insurer under Section 147(3). “Policy of Insurance” includes a
\ncertificate of insurance. Section 146(1) posits that “no person shall use,
\nexcept as a passenger, or cause or allow any other person to use, a motor
\nvehicle in a public place, unless there is in force in relation to the use of
\nthe vehicle by that person or that other person, as the case may be, a policy of
\ninsurance complying with the requirements of this chapter”. Of course this
\nprovision does not apply to vehicles owned by the Central or State Government
\nand used for Government purposes not connected with any commercial enterprise.
\nThis provision corresponds to Section 94 of the old Act. Section 147 provides
\nthat the policy of insurance to be issued by the authorised insurer must insure
\nthe specified person or classes of persons against any liability incurred in
\nrespect of death of or bodily injury to any person or damage to any property of
\na third party as well as against the death of or bodily injury caused to any
\npassenger of a public service vehicle caused by or arising out of the use of the
\nvehicle in a public place. This provision is akin to Section 95 of the old Act.
\nIt will be seen that the liability extends to damage to any property of a third
\nparty and not damage to the property of the owner of the vehicle, i.e., the
\ninsured. Sub-section (2) stipulates the extent of liability and in the case of
\nproperty of a third party the limit of liability is Rupees six thousand only.
\nThe proviso to that sub-section continues the liability fixed under the policy
\nfor four months or till the date of its actual expiry, whichever is earlier.
\nSub-section (3) next provides that the policy of insurance shall be of no effect
\nunless and until the insurer has issued a certificate of insurance in the
\nprescribed form. The next important provision which we may notice is Section 156
\nwhich sets out the effect of the certificate of insurance. It says that when the
\ninsurer issues the certificate of insurance, then even if the policy of
\ninsurance has not as yet been issued, the insurer shall, as between himself and
\nany other person except the insured, be deemed to have issued to the insured a
\npolicy of insurance conforming in all respects with the description and
\nparticulars stated in the certificate. It is obvious on a plain reading of this
\nprovision that the legislature was anxious to protect third-party interest. Then
\ncomes Section 157 which we have extracted earlier. This provision lays down that
\nwhen the owner of the vehicle in relation whereto a certificate of insurance is
\nissued transfers to another person the ownership of the motor vehicle, the
\ncertificate of insurance together with the policy described therein shall be
\ndeemed to have been transferred in favour of the new owner of the vehicle with
\neffect from the date of transfer. Sub-section (2) requires the transferee to
\napply within fourteen days from the date of transfer to the insurer for making
\nnecessary changes in the certificate of insurance and the policy described
\ntherein in his favour. These are the relevant provisions of Chapter XI which
\nhave a bearing on the question of insurer’s liability in the present case.\n<\/p>\n
10. There can be no doubt that the said chapter provides for compulsory
\ninsurance of vehicles to cover third-party risks. Section 146 forbids the use of
\na vehicle in a public place unless there is in force in relation to the use of
\nthat vehicle a policy of insurance complying with the requirements of that
\nchapter. Any breach of this provision may attract penal action. In the case of
\nproperty, the coverage extends to property of a third party i.e. a person other
\nthan the insured. This is clear from Section 147(1)(b)(i) which clearly refers
\nto “damage to any property of a third party” and not damage to the property of
\nthe ‘insured’ himself. And the limit of liability fixed for damage to property
\nof a third party is Rupees six thousand only as pointed out earlier. That is why
\neven the Claims Tribunal constituted under Section 165 is invested with
\njurisdiction to adjudicate upon claims for compensation in respect of accidents
\ninvolving death of or bodily injury to persons arising out of the use of motor
\nvehicles, or damage to any property of a third party so arising, or both. Here
\nalso it is restricted to damage to third-party property and not the property of
\nthe insured. Thus, the entire Chapter XI of the new Act concerns third-party
\nrisks only. It is, therefore, obvious that insurance is compulsory only in
\nrespect of third-party risks since Section 146 prohibits the use of a motor
\nvehicle in a public place unless there is in relation thereto a policy of
\ninsurance complying with the requirements of Chapter XI. Thus, the requirements
\nof that chapter are in relation to third-party risks only and hence the fiction
\nof Section 157 of the new Act must be limited thereto. The certificate of
\ninsurance to be issued in the prescribed form (See Form 51 prescribed under Rule
\n141 of the Central Motor Vehicles Rules, 1989) must, therefore, relate to third-
\nparty risks. Since the provisions under the new Act and the old Act in this
\nbehalf are substantially the same in relation to liability in regard to third
\nparties, the National Consumer Disputes Redressal Commission was right in the
\nview it took based on the decision in Kondaiah case1 because the transferee-
\ninsured could not be said to be a third party qua the vehicle in question. It is
\nonly in respect of third-party risks that Section 157 of the new Act provides
\nthat the certificate of insurance together with the policy of insurance
\ndescribed therein “shall be deemed to have been transferred in favour of the
\nperson to whom the motor vehicle is transferred”. If the policy of insurance
\ncovers other risks as well, e.g., damage caused to the vehicle of the insured
\nhimself, that would be a matter falling outside Chapter XI of the new Act and in
\nthe realm of contract for which there must be an agreement between the insurer
\nand the transferee, the former undertaking to cover the risk or damage to the
\nvehicle. In the present case since there was no such agreement and since the
\ninsurer had not transferred the policy of insurance in relation thereto to the
\ntransferee, the insurer was not liable to make good the damage to the vehicle.
\nThe view taken by the National Commission is therefore correct.
\n\t(Emphasis added)”\n<\/p>\n
\t13.In the light of the above, the contentions raised by the petitioner
\ncannot be countenanced by this court. Hence the writ petition will stand
\ndismissed. No costs.\n<\/p>\n
vvk<\/p>\n
To
\nThe Branch Manager,
\nThe Oriental Insurance Company Ltd.,
\nD.D.J. Centre, 1st Floor,
\nOpp. To Vadasery Bus stand,
\nNagercoil,
\nKanyakumari District.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court S.Selvi vs The Branch Manager on 27 September, 2010 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 27\/09\/2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.(MD)NO.3283 of 2009 S.Selvi .. Petitioner Vs. The Branch Manager, The Oriental Insurance Company Ltd., D.D.J. Centre, 1st Floor, Opp. To Vadasery Bus stand, Nagercoil, Kanyakumari District. .. 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