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MOTOR ACCIDENT AND THE LAW

Article Abstract by: ashok priyadarshi     

Original Author: Ashok Priyadarshi
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MOTOR ACCIDENT AND THE LAW                                                                
                               Ashok Priyadarshi  
The dependents of, who die in motor accident, or injured, file a claim before the Motor Vehicles Claims Tribunal for compensation making Vehicle owners, the driver and the insurer a party in a prescribed form giving all details of the  accident ,deceased or the injured as well as of the claimants along with documents of the vehicles, insurance policy .   The Tribunal issues notices to them.    It is mandatory for the Insurer to take permission to defend the case, but it is not required if the stand of the Insurer falls within the points given under section 149 (2) of the Motor Vehicle''s Act, 1988 hereinafter stated as Act. If granted the appeal by the insurer shall be maintainable.   The claim case is  filed under section 163A, if no fault is alleged and if fault is alleged under section 166 of the Act. The Scheme of the provisions under section 163 A and 166  are distinct and separate in nature. The claim under section 140 of the Act,  is interim in nature and attached with section 166 , wherein if the claim is denied by the Opp. Parties Rs. 50,000/- is to be paid  and The amount paid in interim compensation is  deducted from the principal amount being finally paid.   The award is made on the issues framed, which are, whether the claim is payable , what should be the just award. The Insurer raises the point of no insurance, driver being negligent and having no driving licence, the deceased or the injured has contributed to the accident , , the vehicle being plied without permit or used other than for the purpose it has been insured., violation of insurance conditions,   The Tribunal while deciding the claim has to take into account:-   The calculation on the net income of the deceased or injured. In collusion between two vehicle, entire responsibility cannot be in thruster on any one .   The Hon’ble Supreme Court states that the determination of the quantum of compensation must be fair and reasonable accepted by all legal standards . The manner of arriving at the damage is to ascertain the net income of the deceased available for his own support and his dependents, A deduction of such part of the income of the deceased is made as he was accustomed to spend upon himself, and to ascertain the part of the income spent by him for the benefit of his dependents. Then it should be capitalized by multiplying it by a figure representing the number of year''s purchase. The courts must come to an assessment that it is as best as it can, to the loss suffered .   The multiplier method is logically sound and legally established method of ensuring a just compensation of the awards. This method can be given a go by, in rare circumstances and in exceptional cases. The Supreme Court has fixed the multiplier to 12 and in a very rare case basically if the person dying in the accident is very young to 18. Where parents are claimants their age is to be taken  into consideration .   The Insurer’s  deny a claim on the ground of breach of policy conditions. Insurance policy is issued after the acceptance of the proposal and after the first premium has been honoured then it can be said that the contract  for insurance is accepted. Once the insured has issued a certificate of insurance the insures to satisfy any decree of a claim arising out of the policy.    Liability of the insurer starts when the policy becomes operative on the date and time the premium is paid, if the insurer pleads violation of the terms and conditions of policy , the onus is on the insurer to prove such violation. If the premium has been paid by cheque and it has bounced the insurance contract is void and the insurer cannot be directed to pay the claim Generally the plea taken by the insurer is that the driver did not have a driving licence or the licence possessed  was of a different category other than the vehicle been driven, at the time of the accident the licence had lapsed or the licence did not have an endorsement allowing him to drive a commercial or a transport vehicle . The answers have been given by the  Apex court accordingly   Judgments clarify that mere breach of clause does not absolve insurer of his liability and it will have to establish that the insured himself was guilty of committing breach of promise of insurance contract. The question of negligence has to be determined not only on basis of averment made and the evidence deduced, Police reports regarding accidents or happening cannot be ignored   A dispute arises with regard to the status of the passengers traveling in the vehicle, and it has been clarified that the owner of the vehicle along with gratuitous passenger in a private vehicles is not a third party  and to cover them a separate policy is to be taken, the death of passengers traveling in goods vehicle cannot claim compensation  .   The Tribunal can award interest on the awarded amount and depending on the facts and circumstances of each case and  upon the bank rate prevailing at the relevant time .  
Published: May 10, 2007
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