In today’s world we can see existence of different types of claims viz., matrimonial claims, personal claims, health claims, equity claims, insurance claims etc. Of all these claims we have one accidental claims which has increased in present time with the development of civilization.
Before going further we should first understand the meaning of Accident. Accident means any unintentional act, an act which is just by chance and without any premeditation.
Claim means an assertion, declaration, statement etc. of belongingness/right.
Accidental Claims means claim of right with respect to accident caused due to act of negligence of other. Act of negligence have become actionable wrong.
In the English Law any person or the legal representative of deceased person who expired on account of negligent act of other can besides instituting criminal proceeding, recover damages under the Law of Torts. Accountable negligence consist in the neglect of use of ordinary care or skill towards a person to whom the defendant owes due of observing ordinary care and skill by which neglect the plaintiff have suffered injury to his person or property. Thus, negligence accompanied with losses to the other party give rise to an action.
Under common law there was no right to claim damages in case of death. Right to claim injury was always recognized as in case of personal injury. In order to give effective rights to the person injured or expired in an accident, Fatal Accidents Act, 1885 was enacted in India. This Act provided only a procedure and a right of named legal heirs to claim compensation from the person committing negligence. This enactment has worked in India for a comfortable long period. Because of increase in automation and consequential losses of life and property in accident, it was considered that to give relief to the victims of accident claims an effective law should be brought in. To facilitate this, provisions have been inserted for compulsory third party insurance and to provide a machinery of adjudication of claim in Motor Vehicle Act by amending Act No.110 of 1956, by which Section 93 to 109 with reference to third party insurance and Section 110(A) to 110(F) with reference to creation of Motor Accident Claims Tribunal and procedure for adjudication of claim has been provided. Initially the liability was restricted to a particular sum but after 1982 the liability of the Insurance Company has been made unlimited and even the defences of the Insurance Companies have been restricted so as to ensure payment of compensation to third parties.
In the year 1982 a new concept of providing interim compensation on ‘No Fault’ basis have been introduced by addition of Section 92(A) to 92(E). By the same amendment, relief has also been given to those persons who expire by hit and run accidents, where the offending vehicles are not identified.
THE MOTOR VEHICLES ACT, 1988
In 1988 a new Motor Vehicle Act have been introduced and in new Motor Vehicle Act’s Chapter 10 provides for interim award. Chapter 11 provides for insurance of motor vehicle against third party risk and Chapter 12 provides for the constitution of Claims Tribunal and adjudication of claim and related matters. This law is still in an era of serious changes. Supreme Court has number of times held that this is a welfare legislation and the interpretation of provision of law is required to be made so as to help the victim. In this process Supreme Court has passed various judgments in recent past, which have restricted the statutory defenses of the Insurance Company to a greater extent as law relating to burden of proof have been totally changed. Limited defenses as to not holding valid driving license, use of vehicle for hire and reward, use of transport vehicle for the purpose not allowed by permit are required to be proved in so stringent manner that insurer are not getting advantage of these defenses.
WHAT IS FAULT LIABILITY?
WHO CAN BE CLAIMANTS?
In injury cases, it is the injured and in case of death cases the legal heirs of the deceased are claimants.
ASSESSMENT OF COMPENSATION
Life cannot be valued; similarly no human being can be put into any monetary value of his limb or of any other human being. The courts can only grant compensation for the pecuniary and monetary loss caused and some other expenses, but no court can even attempt to grant compensation for loss of life or limb. Mainly pecuniary loss has to be assessed. Nominal damages for funeral expenses are awarded and on loss of consortium. Long expectation of life is connected with earning capacity. In its very nature whenever a tribunal or a court is required to fix the amount of compensation in cases of accidents it involves some guess work, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused.
STEPS INVOLVED FOR ASCERTAINING THE COMPENSATION IN DEATH CASES:
The work of the tribunal has been made somewhat easy by the recent judgment of the apex court in Sarla Verma vs. Delhi Transport Corporation, wherein the following factors have to be considered by the Tribunal while awarding compensation.
The income of the deceased per annum should be ascertained. Out of the said income a deduction is to be made with regard to the amount which the deceased would have spent on him by way of personal and living expenses. The balance which is to be considered to be the contribution to the dependent family constitutes the multiplicant.
Having regard to the age of deceased and active career, the multiplication method should be selected
Injuries cause deprivation to the body which results in losses, entitling the claimant to claim damages. The damages may vary according to the gravity and nature of disability or of injuries suffered.
The damages can be pecuniary as well as non pecuniary. But all this has to be converted into rupees and paisa. The court has to make a judicious attempt to award the damages, so as to compensate the claimant for the loss suffered by him. The compensation should not be assessed in so liberal fashion as to make it a bounty for the claimant. There must be an endaveour to secure some uniformity and consistency. It is desirable that so far as possible comparable injuries should be compensated by comparable awards.
HOW TO ASSESS DAMAGES
Damages have to be assessed under two heads, viz; Pecuniary Damages and Special or General Damages.
Pecuniary Damages may include expenses incurred by the claimant on:
- Medical treatment, attendance, transportation, special diet, etc;
- Actual loss of earning of profit up to the date of trial; Future loss of earning
Non- pecuniary Damages include:
- Damages for mental and physical shock, pain and suffering already suffered or likely to be suffered in the future;
- Damages to compensate for the loss of amenities of life which may include a variety of matters, i.e., on account of injury the claimant may not be able to walk, run or sit.
HOW TO FILE CLAIM APPLICATION
Claim application can be filed under Section 163A for claim to be determined on structural formula basis provided in Schedule-II. Schedule-II has been adjudged as suffering from severe mistakes and the Supreme Court has held that total reliance cannot be placed on this schedule. The injured or the legal representatives of deceased can file claim application in a prescribed format making driver, owner and insurer as party. Driver is not a necessary party in some states. No limitation has been prescribed for filing of the claim application. Initially when the law has come into force the limitation was 6 months which was later increased to one year and ultimately in the garb of welfare legislation the provision of limitation has been deleted.
LEGAL DEFENCE AVAILABLE TO THE INSURANCE COMPANIES TOWARDS THIRD PARTY:
The Insurance Company cannot avoid the liability except on the grounds and not any other ground, which have been provided in Section 149(2). In recent time, Supreme Court while dealing with the provisions of Motor Vehicle Act has held that even if the defence has been pleaded and proved by the Insurance Company, they are still not absolved from liability to make payment to the third party but can receive such amount from the owner insured. The courts one after one have held that the burden of proving availability of defence is on Insurance Company and Insurance Company has not only to lead evidence as to breach of condition of policy or violation of provisions of Section 149(2) but has to prove also that such act happens with the connivance or knowledge of the owner. If knowledge or connivance has not been proved, the Insurance Company shall remain liable even if defence is available.
PROPOSED AMENDMENTS IN MOTOR VEHICLES ACT BY CENTRE
Soon, traffic rule violators will have to cough up hefty penalties – almost 10 times more than what they pay now – for offences such as over speeding and drunk driving. The Centre has proposed Motor Vehicle Amendment Bill, the legislation that regulates road transport in the country. The Motor Vehicles Act was amended last in the year 2001. The bill, drafted by the Road Transport Ministry, has made penalties for traffic offences much more stringent.
Rash driving for example is now likely to attract a civil liability of upto Rs 5,000 in addition to punishment under the Indian Penal Code. Drunk driving will attract a penalty of Rs 5,000 and a two-year jail term.
For the first time, a concept of graded fines for drunk driving is likely to be introduced. This means that penalty will be directly proportional to the alcohol content found above the stipulated limit of upto 30 mg per 100 ml of blood in the driver’s body.
- Jumping red light for the first time can cost the offender Rs.500. The fine will be Rs.1000 for the second time and if repeated again it will go upto Rs.1500.
- Offences like drink driving can put the offender behind bars for at least two years with Rs.5000 as fine.
- The penalty for crossing speed limit will range between Rs.1000-Rs.1500.
The law of accident claims is fast growing and the amendments to suit the requirement of the object are necessitated but at the same time interest of those should be watched who are disbursing the compensation i.e. Insurance Companies. Without affording them right to contest, imposing liability to make payment should not be approved by law. Presently because of increasing scale of compensations almost 10 to 15% or even more cases presented to the Claim Tribunals are fake or the other accidents have been converted into road accidents with connivance of the police authorities. It is necessary that while increasing the burden of the Insurance Companies they must get a right to contest to mitigate fake cases.
Ms. Shweta Kaushik, Advocate Punjab and Haryana High Court
Also Check out