LEGAL
ASPECTS OF MOTOR ACCIDENT VICTIMS IN INDIA & OTHER COUNTRIES.
( A Report written in 1995-96 on India's Legal Provision for Road Accident victims vis-a-vis similar provisions in other part of the world)
This report has been prepared after the study of various
legal systems of compensation of road traffic victims, prevailing in developed
and developing countries touching vast array of issues broadly on legal aspects
of motor third party claims and law relating to motor accident victims. The
study group has also examined the various problems of road accident victims,
insurers and the automobile owners within the legal framework of different
countries with special emphasis on following aspects : -
1. Motor
Vehicle Act Provisions regarding liability in respect of bodily injuries, death
and property damage - Limited or unlimited liability and whether
insurers are allowed to cap the limit of their own liability.
2. Basis
of Legal regime - Fault liability or No-fault liability
3. Procedure
of lodging claim with insurers and time taken to finalise such claims.
4. Defences
available to the insurers.
5. Problems
of existing legal system in developing Countries and reform measures taken in
those countries.
6. Basis
of Compensation for victims of accidents other than Road accidents.
The provisions
of law relating to Motor Vehicles prevailing in different Countries have been
attached with this report. The study of the same reveals the following aspects
of third party automobile liability legal framework governing the compensation
of road traffic victims:
1.
LEGAL
PROVISIONS REGARDING THE THIRD PARTY LIABILITY:
Legislatures of both developed
and developing countries ensure that the victims of highway/road accidents
would be able to secure compensation when they are injured, especially when
injuries resulted from the negligent operation of the motor vehicle. In most of
the Countries Legislation require all motorist to acquire liability insurance,
as a prerequisite to registration of their motor vehicle but the requirement of the act and the compulsion of the insurance
is not unlimited in all the
Countries. In fact, the law
provisions in different countries provides compensation to the victims of the
road accidents as under :
A. Liability against the bodily injuries up to the threshold determined by the law or by providing minimum guarantee: Third Party bodily injury liability is limited in most of the states of the USA, in Germany, Japan, South Korea, most of the Provincial and territorial Government in Canada, in all nine states of Australia, in Nepal, Bhutan, Sweden, Switzerland, Austria, Philippines, France, Greece, Indonesia, Tunisia, Kuwait, Denmark, Iceland, Afghanistan and Italy.
B.
Unlimited liability against the bodily injuries
and with certain amount against the Property damages of the third parties. Only a selected few
Countries like Norway, Finland & Sweden have provisions of unlimited
liability against both the bodily injuries and property damage liabilities. The
unlimited liability provisions may be found in Countries like United Kingdom,
India, Pakistan, Sri Lanka, Belgium, Egypt, Ireland, Malaysia, Luxembourg,
Mauritius, Cyprus, Burma, Singapore, Ghana, Kenya & Nigeria.
C.
Automobile
liability is unlimited by law but the insurers are allowed to cap their
liabilities up to specified amount. In Thailand, Transport Act does not
require compulsory TPL insurance except for carriers and haulage contractors.
In Togo also, compulsory third party insurance is required only of those
engaged in transport undertaking.
D.
No act compulsions for third party liabilities: There are no act compulsions for third party
liabilities in Russia. In fact there is no Motor Vehicle Act in Russia. In
China also the automobile liability is not compulsory countrywide though some
Provinces make provisions for unlimited cover and in such Provinces the
insurers put a cap of RMB 1,0000,000 and for higher limits the insured has to
negotiate with the insurers. Besides the above mentioned countries the third party
liability is not compulsory in Bolivia, Ethiopia, Liberia, Oman, Lebanon, Saudi
Arabia, Ecuador, Peru, Venezuela, Kiribati and Yemen.
E.
In New
Zealand, all accidents [road, industrial, etc.] have been put on an equal
footing with Limited liability provisions. The New
Zealand scheme is most comprehensive scheme in the world covering all accidents
24 hours of the day, for all persons. The losses considered for the
compensation are generally classified as economic losses [Pecuniary losses] and
Non economic losses [non-pecuniary losses]. Economic losses include loss of
income, medical expenses and miscellaneous out of pocket expenses. Economic
losses are easier to quantify than non- economic losses. Non economic losses
include pain and sufferings, personality deterioration and related general
damages. In certain countries compulsory insurance does not cover non-economic
losses.
2.
BASIS
OF LEGAL REGIME [FAULT/ NO-FAULT BASIS]:
Losses arising from motor accidents are settled in different countries
according to the liability system prevailing in those countries. There are
alternative approaches, which have been adopted in different countries for
compensation of road accident victims are based on four possible legal systems
and each of the system is capable of variations: [a] fault system [b] the presumption of fault system, [c] the
no-fault system & [d] mixed system of basic no-fault compensation and full
fault compensation. In a Survey Report of Swiss Re of 104 Countries it was
found that the different systems of identifying fault were used as follows:
Ø
Liability
for Negligence must be proved in almost 60 % of the Countries, especially
in those European countries with a Common law tradition and the African and
Asian Countries which were formerly their colonies.
Ø
Absolute
Liability applies in about 25 % of Countries, mainly in Europe and some
countries in South America. Under an Absolute Liability or Strict Liability
System, it is not necessary to prove that a motorist was negligent in his use
of a motor vehicle, in order to claim compensation from him. If a person proves
that he has suffered loss / injury because of someone else’s use of a motor
vehicle, then he is entitled to compensation from the vehicle user, even though
the user might have acted with all reasonable care. In Austria, Germany, Turkey, Mauritius,
Portugal and Malawi there is absolute liability in some instance but negligence
has to be proved by plaintiff in other cases.
Ø
No- Fault
insurance scheme in which there is no enquiry as to whose fault caused an
accident is found in 24 States of the USA, Australia, Bangladesh, many
provinces of Canada, Italy, India, Pakistan, France, Germany, Finland, New
Zealand, Victoria, Tasmania, Norway and in many other countries. Countries
where no-fault system exists, in fact uses two different systems for the
compensation of the road victims:
Ø
“No
Law-suit No-fault”, is a scheme under which injured persons are intended to
be fully compensated for their injury by the compulsory insurance scheme, and
they have no further right to go to Court to seek further compensation from
anyone. This kind of system is effectively working in New Zealand.
Ø
“Add-on
No-fault”, is a scheme under which every injured person will receive
guaranteed benefits from the compulsory insurance scheme, but still has the
right to go to Court to attempt to prove that the injury was due to someone
else’s fault and to seek further compensation if that can be justified. The
merit of the “mixed system of fault and
no fault” system is obvious as it assures every traffic victim of a basic
protection and also satisfies the general feeling that every victim of a fault
should receive full compensation. Germany, Most of the States of the USA,
Brazil, India, Philippines, Belgium, France and many other countries follow
this mixed system of legal regime.
Ø
Method of
establishing the fault also varies in different countries. In developing
countries [Asia and Africa], following British Common law - the victim must
prove the fault of the opposing party. In these countries liability for road
accident victims is based on Established Negligence before compensation can be
awarded. The plaintiff must establish
negligence as the onus of the proof is on the plaintiff and if he fails to
discharge this burden he will not be awarded damages. However in certain
circumstances the facts may speak for themselves ‘ res ipsa loquitur’ - and the presumption of negligence raised by
circumstances will relieve the plaintiff of adducing further evidence of
negligence unless the defendant rebuts the presumption.
Ø
In U.K, Belgium [in law], Cyprus, Egypt, South
Africa, Zimbabwe, Lebanon, Pakistan, Bangladesh, Sri Lanka, Australia, Fiji,
Sudan, Kenya and certain other countries system relating to payment of
compensation for road accident victims is based on established negligence.
Ø
In Countries, influenced by French Civil Code [in Africa & the Pacific, as well as some
Latin American Countries] a motor vehicle is presumed to be a dangerous object
and a presumption of the liability
attaches to the operator and proof
of negligence is not required. The
operator may, however, overcome the legal presumption by proving that he/she
was not at fault. This is the case in France,
Bennin, Belgium [in practice], Japan,
Congo, Togo and Tunisia.
Ø
No-fault
schemes are placed in hands of Statutory Boards or in hands of Government
Insurers like in New Zealand in some countries whereas in some of the
countries like Norway, Finland, Sweden, Philippines the no-fault schemes are handled by the private insurers.
3. PROCEDURE OF LODGING CLAIMS:
Ø
In most developing countries, losses arising
from motor accidents are settled according to the liability system. Generally
the claimants lodges claim against negligent party [owner / driver]. In Common
law jurisdictions it is not the insurer who is liable for compensation payments
in the first instance but its insured, the at
fault motorist. Most insurers, however, insist that their insured must
notify them as quickly as possible about the accident so that they can then
follow-up the injured third party and offer settlement. It is because of this
notification clause in insurance policies the owner /driver then notifies the
insurer who defends or pays the claim - serious disagreement can see the claim
going before the Courts.
Ø
Including
India, in many countries it is unique in practice that the first an insurer
knows of its liability only when it receives a summon from the Court. But in
countries where there is a statutory insurer, as in New Zealand, it is usual for
the claim to be lodged against the Corporation in the first instance, and to go
to Court only in the event of dispute. In New South Wales [Australia], the
law prohibits an injured third party from claiming benefits if they fail to
claim the insurer without good reason, in the Court opinion, within 6 months of
the accident and the claimant will also
have his benefits reduced if he rejects an insurer’s settlement offer which the
Court later finds to be reasonable.
Ø
In China the claimant [insured] is required to
lodge the claim directly on the insurer but if the claimant is the injured
party [victim of the accident] he/ she may prefer to go to court. It may also
be noted that automobile liability is not compulsory countrywide in the
Republic of China. In Russia also the claimant should approach directly the
insurer or broker in first instance. In Bhutan it is the duty of the owner of
motor vehicle to pay compensation to the victim of accident caused by him
within 48 hours of the accident and then insurers recompense him within 72
hours of the notified accident.
Ø
In European countries, which follow the Code
Napoleon court, proceedings before the insurer’s intervention are more usual,
because insurer will not pay third claims except pursuant to a court judgement.
However, insurers ensure that their insured tell them about the court
proceedings, by incorporating legal expense benefit clause in their policies.
If insured wants to claim part or all his legal expenses he must notify the
insurers before the claim comes to court. This allows insurer to intervene in
the Insured’s defence of the claim.
Ø
In Japan,
Article 15 & 16 of Automobile liability security Law deal with filing of insurance claim. Article 15 states that the insured may file
insurance claim with the insurance company to the extent of the amount of
damages paid by him to the victim. Article 16 deals with lodgment of direct
claim by victim for compensation against insurance company if the holder of
policy becomes liable to pay damages under article 3. Victim may claim from
insurance company to the extent of the insured amount. When the insured has
paid damages to the victim and the insurance company has indemnified the
insured for loss, the insurance company shall, to the extent of amount paid by
it be discharged from its liability to the victim. In Japan limit of claim amount
for loss of earnings or any other loss is provided in government ordinance and
the same is limited. In case where a person has been killed / injured
by operation of an automobile and if the victim cannot claim damages under
article 3 for the reason that the holder of the automobile cannot be
identified, the Government of Japan shall at the request of victim, compensate
him under Government Automobile Liability Compensation Scheme but the government shall not compensate for the loss to the
extent the amount of benefit is received by him under Health Insurance Law
Scheme, Workmen Accident Insurance Law or other laws or ordinances enacted
by the Government. For this government
scheme, insurance companies, associations and persons who operate automobiles
[provided in government ordinance pursuant to Ministry of Transport ordinance]
pay the government contribution to auto liability compensation business.
Ø
In most other Common Law jurisdictions where
competing insurers provide benefits, it is not compulsory for the insurers to
be approached first in an attempt to attain settlement, but the insurers try to
be proactive and to involve themselves at an early stage. Generally insurers involve themselves in
claims soon after an accident occurs, in part because of the notification
clause of the policy and the motor vehicle law and in part because they
recognize their self-interest in seeking an early settlement since claimant’s
expectations increase as time passes.
Ø
There is
also statute of limitation for road accident liability suits almost in all
countries. In countries like Germany, Austria & France, this
prescription period is up to 10 years from the date of accident [but in these
countries also the limitation period against the no fault liability is
restricted to 3 years] In some countries like Spain the limitation period is
restricted to 5 years. In countries like Finland, Sweden & UK, the period
of limitation for action to recover damages in tort are 3 years for personal
injury cases. In Greece, the limitation period is 2 years and in Spain the
action must be instituted within a year. In some countries the limitation
period is restricted to 6 months from the date of accident.
Ø
In India, however the provisions u/s 166[3] of
the MV Act 1988 with regard to fixation of time limit for filing the
applications for compensation by the road victims have been deleted under the
MV [Amendment] Act 1994 and in opinion of the Hon’ble Sh AM Ahmadi, [former Chief
Justice of India] the Law of Limitation does not automatically apply to special
statutes and as the Limitation act doesn’t on its own force apply to
authorities other than courts it may be expressly held that Limitation Act
would not be applicable to quasi judicial bodies like Tribunals. As a sound
public policy “ the interest of the State
requires that there should be an end to litigation ” the MV Act in India
should be suitably amended to incorporate appropriate provision about the
application of Limitation Act or make a provision of specific period of
limitation for the proceedings before the Claim Tribunal.
4. DEFENCES AVAILABLE TO THE INSURERS :
The motor vehicle act provisions in almost all countries carry some
similar provisions to defend the action on grounds like:
Ø
Breach of specified policy conditions of the
policy
Ø
Vehicle being driven by someone other than
person having valid driving licence.
Ø
Insured obtaining policy by non-disclosure of
material fact or false representation in some material particular.
Ø
Injury contributed / caused by conditions of war
or like conditions.
Ø
Suspension of the contract following the
transfer of ownership of the vehicle.
Ø
Injury caused to person travelling in a stolen
vehicle.
Ø
Vehicle being driven by someone other than
person designated in contract.
Ø
Vehicle being driven by a person under the
influence of alcohol or toxic products.
Ø
Driving the vehicle when it is not sufficiently
safe [ number of persons carried , motor
used ]
Ø
Infringements of Highway Code.
Ø
Regular suspension of the cover for non-payment
of premium.
In some countries the defences available are very few but in other
countries most of the above defences are available. In a few countries, like
Finland, the only defence available against the claimant is that the basis of
the insurance policy was not valid at the time of the accident. In Germany, in
principle, the insurers may not oppose against the injured third parties the
non-existence of the contract or its expiry unless the claim occurred more than
a month after the date on which the insurer informed the Vehicle Licensing
Authorities of the cessation of the contract.
In United Kingdom the insurers can plead non cover vis a vis injured
third parties by imposing certain restrictions in their policies like:
·
The age or physical or mental condition of the
persons driving the vehicle.
·
the condition of the vehicle ;
·
the number of the persons that the vehicle
carries ;
·
the weight or physical characteristics of the
goods the vehicle carries;
·
the time at which or the areas within which the
vehicle is used ;
·
the horsepower or cylinder capacity or value of
the vehicle ;
·
the carrying on the vehicle of any particular
apparatus ;
·
The carrying on the vehicle of any particular
means of identification other than the registration mark.
In
most of the countries, the defence against the driving by a person under the
influence of alcohol etc. is not available in case of third party injuries, but
many of the countries provide a recourse against the insured in such a case.
In
India besides the specific defences available to insurers u/s 149 of MV Act
1988 [onus lies on insurers to prove the defences taken] in case of non
cooperation from the side of insured and his driver, Insurers have further
defences u/s 170 of the MV Act 1988 to oppose the claim on all or any of the
grounds which are available to the Insured / Owner of the Vehicle but for this an application has to be filed
seeking permission of the Tribunal and the award if settled on that basis, than
only the insurers can prefer an appeal
in the High Court taking defences available u/s 170. In the interest of the fairness/ quick disposal it is desired that the
act should be amended in such a way that the defences of S/170 should be
automatically available to the insurers while contesting the case in Claim
Tribunal as well as at the time of appeal before the High Court if the insured
/ owner of the vehicle does not cooperate the insurers whether or not an
application was filed before the tribunal.
5.
PROBLEMS
BEING FACED WITH EXISTING LEGAL SYSTEM OF MOTOR VEHICLE THIRD PARTY LIABILITIES
AND REFORMS UNDER CONSIDERATION :
Ø
In Countries where the liability amount is
limited, there are not many problems as the awards are given around those
amounts only. In other countries, in order to provide victims of road accidents
uniform and adequate compensation, a system of some kind of structured table
compensation formulas/tables for pecuniary losses as well as general damages
sustained by the victims of the road accidents has been devised. Ogden tables
in UK, Second Schedule in India are few examples but till today nowhere in the
world the structured compensation has given the desired results and the reason
is that it is not taken as mandatory by
the judiciary to take notice of the structured tables if they are cited by a
litigant. The Supreme Court in India
in the case of UP States Road Transport Corporation & others Vs. Trilok
Chandra and others [1996 ACJ 831] has said that 2nd Schedule is a guide as
there are innumerable mistakes in income calculation and the figures arrived
at. Nonetheless the fact remains that the 2nd schedule is part of Indian MV Act
and therefore it need be considered as mandatory [after removal of the
arithmetical errors as pointed out by the honorable Supreme Court.].
Ø
Further,
in a judgment the Gujarat High Court has cited that the Section 163 A
[Special provision as to payment of compensation on structured formula] has
been introduced to take care of those cases where the No fault liability u/s
140 is not up to the expectations; whereas, the MV Act does not treat Section
163 A as an enlarged form of Section 140 and the same is an independent
section. In order to avoid from such
situations ,it is required that the MV Act should have clear-cut provisions
that :-
·
The 2nd Schedule is mandatory and the Victim has
two routes for claiming compensation [a] either under section 140 [interim
payment] in conjunction with section 166 or [b] Under section 163 A based on
proved income, age and application of multiplier. Claimants can select any one
of the routes and once a payment is made u/s 163 A, it should be the finality of the payment. At present, the Act does not
specify that the Structured Compensation Formula is full and final settlement
but the GIC may suggest that provision of finality of payment should appear in
the schedule attached to the Act.
Ø
The payment of enormous sums against the third
party road compensation claims in Countries following unlimited liability
provisions is also partly attributable to the so called contingency system under which lawyers work on a no-cure
-no-fee basis. Countries following British system, under the law
prohibit such practices. Arrangements of this sort nevertheless do exist even
in such countries and exaggerated sums are demanded by injured persons on the
advice of their lawyers who take a percentage of the award. Judges, Assessors
and Juries knowing that this happens sometimes unofficially take this into
account in fixing damages & these results in excessive awards. The
contingency system also encourages litigousness, for a man is more likely to
sue his adversary if he knows he has nothing to lose even though he fails. This system also defeats the purpose of the
award, since the amount left in the hand of the injured party becomes sometimes
inadequate to serve the needs for which compensation was assessed and awarded
[especially if the claimant is uneducated and poor].
6. BASIS OF COMPENSATION FOR VICTIMS OF
ACCIDENTS OTHER THAN ROAD ACCIDENTS :
Accident Compensation for
industrial accidents or for victims of Railway or Air accidents is not based on
unlimited liability pattern. The liability of industrial accidents is well
defined in Workmen Compensation Act and the compensation is limited for all
industrial accidents causing personal injuries.
Ø
In case of railway accidents, causing injuries
to the passengers of the railways, the accident compensation is governed by
Railway Act 1989 [Section 124] and the Railway administration is liable to pay
compensation to such extent as may be prescribed and to that extent only for
loss occasioned by death of a passenger dying as a result of such accident, and
for personal injuries as per the Railway Accidents [Compensation] Rules, 1990.
Under Railways Accident Compensation Rules 1990, the amount of compensation
payable in case of death and the
injuries which deprive a person of all capacity to do any work is Rs. 2 Lakhs.
For other injuries, the amount varies from Rs. 16000/- to Rs. 1,80,000/-.
Collisions between trains and road vehicles at level crossings in which
railway passengers are not involved and cases of persons run over by trains are
not covered under these rules and, as such no compensation is paid to persons
killed/injured in such accidents. In such cases, however, damages can be sought
under the Law of Torts. The Compensation of the Railway accidents is meet from
“ Accident Compensation, Safety and Passenger Amenities Fund”.
Ø
In Case of Air transport operators the legal
liabilities may be divided in three major groups :
·
The general Public [ third parties ]
·
Those who fly in their Aircraft [ Passengers ]
·
Those whose goods are carried in their aircraft
[ Consignors or Consignees
]
Legal liabilities to third parties [general public] are generally covered
in all countries by the respective Civil Aviation Acts of those countries.
Legal liability to passengers is governed by:
·
International conventions for flights from one
nation to another ;
·
Domestic legislation for flights within one
nation.
The question of providing some form of compulsory insurance against the
risk to passengers and third parties where aircraft are concerned was first
raised at the Warsaw Convention 1929. No agreement could be reached. A further
attempt was made with the Rome Convention and Brussels Insurance Protocol. Both
failed. The current convention in force
is the Rome Convention 1952 which specifies the rules and limits of liability
in the case of an aircraft causing death, personal injury or property damage in
foreign territory to third parties on the ground. The unit of currency is the
franc gold and limits of liability vary according to the weight of the
aircraft.
Carrier liability [in case of international flights] is restricted to an
agreed amount in case of all countries following Warsaw Convention, The Hague
Protocol, The Guatemala Protocol or Montreal Additional Protocol.
“This provides that in
the event of death of a passenger, or any bodily injury or wound suffered by a
passenger which results in a permanent disablement incapacitating him from
engaging in or being occupied with his usual duties or business or occupation,
the liability of the carrier for each passenger shall be Rs.7,50,000 if the
passenger is 12 years or more of age and Rs.3,75,000 if the passenger is below
12 years of age on the date of the accident.“
RECOMMENDATIONS OF THE STUDY GROUP
Vast array of issues have been touched
upon fairly in the above study on legal aspects of Motor third party claims and
law relating to motor accident victims. The issues involved are complex in a
country like India, as the methods adopted and legal system has been found more
or less inadequate and that some changes are warranted to do justice to all
concerned [the unfortunate victim of road accident, owner of the
vehicle and the insurance company].
This study
focuses attention on external factors [legal system] and keeping in mind the
present automobile legal system we feel that the following few alternatives may
be suggested: -
1. SEPARATE COMPULSORY AUTOMOBILE LIABILITY
AND VOLUNTARY AUTOMOBILE
LIABILITY SCHEMES :
i. In the above study it has been found
that in most of the developed Countries including USA, Germany, France and in
most of the developing Countries in Asia including Japan, South Korea and
China, the compulsory automobile
liability is limited; as such it may be recommended to the appropriate
authorities that in India also the compulsory automobile liability should be
limited up to a specific amount depending on the average gross national income
or on some such criteria.
ii. The
automobile owners may also purchase voluntary
automobile insurance in excess of Compulsory automobile liability cover
after payment of premium decided by the TAC / Insurers for such a cover. It is
worth to mention here that this kind of automobile liability system is
effectively working in Japan
iii. The
Compulsory automobile liability may also be de-linked from the general insurers
and it may operate through the operation
of Indemnity / Guarantee Funds .This fund may be financed by :
·
Tax on insurance premium / Compulsory Insurance
Premium
·
Tax on
Vehicle
·
Modest tax on petrol and other fuels to run
automobiles.
·
Subsidy from State [ specially for no-fault
compensations ]
·
Fine on uninsured vehicles
iv. Voluntary
insurance may cover any kind of legal liability for an accident arising from
the ownership, maintenance and use of the insured automobile irrespective of
whether such liability occurs in a public place or in a private place [e.g.
explosion of insured automobile kept in garage]. For Voluntary insurance also
the insurers should be allowed to cap their liabilities as per their retention
capabilities.
2.
VICTIMS
TO APPROACH INSURERS DIRECTLY IN CASE OF PERSONAL INJURIES OR DEATH CASES :
With limited
liability on structured pattern it is possible that victims should approach the
insurers in the first instance and only in case of some dispute the case should
go to the Courts concerned. In Japan a
victim is entitled to claim directly to the insurance company and he can
recover the damages from the insurance company. In case the insurance
company has indemnified the victim fully, the insurance company may claim
compensation against the Government compensation plan. The government in turn
is subrogated to the victim’s claim against the liability partly to the amount
of damages paid by insurance company.
In New Zealand and Russia the claimant has to
lodge against the insurers in the first instance. Common law has been
modified in many countries and in India also the Common law may be modified to
this extent that the victim may approach directly the insurers and the insurers also get the defences available to
the automobile owner automatically. At present Insurers get these defences
under section 170 of the MV Act 1988
only when there is collusion between the person
making the claim
and the person against whom the claim is made or when the person against whom
the claim is made has failed to contest the claim and that too only after
moving an application to this effect in Claim Tribunal.
3.
LIMITATION
AS TO FILE AN APPLICATION OF COMPENSATION:
04 OTHER
SUGGESTIONS: -
i. There
was a provision u/s 166 [2] of MV Act 1988 that every application under sub
-section [1] shall be made to the Claims
Tribunal having jurisdiction over the area in which the accident occurred but
in MV Amendment Act 1994 the jurisdiction of filing the application has been
widened to the place of accident / place of work or place of residence at the
choice of the applicant. In this regard it is suggested that the original
application should be filed to the Claim Tribunal having jurisdiction over the
area in which accident occurred and on request of the applicant it may be
transferred to any of the Claim Tribunal after noting in proper record book so
that there remains no chance of lodging of claim at more than one place.
Further in the application format there should be included an undertaking to be
given by the applicant that at no other Tribunal the case has been filed.
ii. There
should be specified provisions in MV Act that Claimant can choose one of the
two routes for claiming compensation: [1] Either under section 140 [interim
payment] in conjunction with Section 166 [on fault basis] or [2] Under section
163 A based on proved income, age and application of multiplier [As per
structured compensation 2nd schedule]. Further it should be mandatory for the
judiciary to take notice of 2nd schedule if they are cited by the litigant and
it should be provided in the MV Act that the payment once made under the
Structured compensation formula is full and final settlement and there will be
no further payment u/s 166 of the MV Act or any other provisions of this or any
other Act.
iii. In
order to encourage the participation of the insured / owner of the automobile,
the insurers should be allowed to incorporate a provision of some excess in the
liability policy. This excess will force the at-fault motorists to take active part
in the judicial proceedings and to Co-operate the insurers whenever required.
iv. As
per the provisions of s/173 any person aggrieved by an award of a Claim
Tribunal may, within 90 days from the
date of award, prefer an appeal to the High Court but at the same time, as
per the new clause 168 [2] & [3] of the Motor Vehicle Act [statutory obligation to satisfy the Award
within 30 days from the date of the award in such manner as the Claim Tribunal
may direct], Claim Tribunals have been empowered to recover the award amount
from the insurers bank account through attachment after 30 days from the date
of award . Recovery of the MACT award through bank attachment has become the
order of the day which has practically reduced the appeal period from 90 days
to 30 days because after the disbursement of award amount there can not be a
stay and recovery of such amount from claimant becomes a remote possibility. It
is suggested that either the period to deposit the award within 30 days [S/168
{3}] should be raised to 90 days or there should be a mandatory provision that
the recovery of money through Bank attachment should be enforced only after the
lapse of the period of the appeal available in this Act, i.e. after 90 days of
the date of award.
v.
In some cases, where the defence of ‘vehicle
driven by someone other than a person having a valid driving licence’, could be
taken by the insurers but unfortunately the drivers / vehicle owners do not
provide the Driving licence and in absence of the same it is difficult to prove
the defence, which otherwise would have been available to the insurers. It
should be mandatory on the part of the driver/ vehicle owner to provide all the
documents [especially the DL] to the insurers otherwise they should bear the
liability awarded by the Tribunal / Court. Further at some places the Licensing authorities do not provide the
certified copy of the DL and this creates another problem in proving the
defence available to the insurers. It should be made mandatory for the
licensing authorities to provide, in writing, the details of the driving
licence issued by them within a defined period after an application is made by
the insurers in this regard.
It is believed that the recommendatory proposals made in this study of Automobile liability system should result in more efficient functioning of the legal system and early settlement of the claim to the victims.
VINAY VERMA
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