COMPENSATION IN MOTOR ACCIDENT CLAIMS: A
STUDY OF EMERGING TRENDS
CONTENTS
Page Nos.
Acknowledgement
i - iii
Abbrevations
i - iv
Contents
i -xvii
Table of Cases
i - xxvii
CHAPTER I:
Introductory
1-22
A. General
B. Statement of Problem
C. Aims and Objectives of the Study
13
D. Overview of the Existing Literature
14
E. Research Methodology
19-21
I.
Coverage and Sample
II. Selection of Cases
F. Chapter Scheme
CHAPTER II:
20
20
21
The Motor Vehicles Act, 1988: 23 - 97
History, Object, Scope
and Salient Features
A. Introduction
24
B. History
26 - 34
Pre 1988 Position
26
The Motor Vehicles Act, 1988
27
III.
The Motor Vehicles (Amendment) Act, 1994
29
IV.
Law Commissions 119th Report
31
V.
The Motor Vehicles (Amendment) Act, 2000
32
VI.
The Motor Vehicles (Amendment) Act, 2001
33
I.
II.
C. Objects and Scope
34
D. Definitions The Genus and Species of Motor Vehicles
37 - 45
I.
Area
38
Articulated Vehicle
38
III.
Axle Weight
38
IV.
Certificate of Registration
38
Conductor
38
Conductors Licence
38
Contract Carriage
38
VIII.
Dealer
39
IX.
Driver
39
Driving Licence
39
Educational Institution Bus
39
Fare
40
XIII.
Goods
40
XIV.
Goods Carriage
40
XV.
Gross Vehicle Weight
40
XVI.
Heavy Goods Vehicle
40
Heavy Passenger Motor Vehicle
40
Invalid Carriage
40
Learners Licence
41
Licensing Authority
41
II.
V.
VI.
VII.
X.
XI.
XII.
XVII.
XVIII.
XIX.
XX.
XXI.
Light Motor Vehicle
41
Manufacturer
41
XXIII.
Maxi Cab
41
XXIV.
Medium Goods Vehicle
41
Medium Passenger Motor Vehicle
41
XXVI.
Motor Cab
41
XXVII.
Motor Car
41
Motor Cycle
42
Motor Vehicle or Vehicle
42
Tractor-Trailer
42
Omnibus
42
XXXII.
Owner
42
XXXIII.
Permit
43
XXXIV.
Prescribed
43
Private Service Vehicle
43
Public Place
43
XXXVII.
Public Service Vehicle
43
XXXVIII.
Registered Axle Weight
43
Registering Authority
43
Route
43
Semi-Trailer
44
Stage Carriage
44
XLIII.
State Government
44
XLIV.
State Transport Undertaking
44
Tourist Vehicle
45
Tractor
45
Traffic Signs
45
Trailer
45
Transport Vehicle
45
XXII.
XXV.
XXVIII.
XXIX.
XXX.
XXXI.
XXXV.
XXXVI.
XXXIX.
XL.
XLI.
XLII.
XLV.
XLVI.
XLVII.
XLVIII.
XLIX.
L.
LI.
E.
Unladen Weight
45
Weight
45
Concept and Meaning of Accident
I. Accident and Other Allied Expressions Like
46 51
47
Act of God, Inevitable Accident, Latent Defect, etc.
II. Defence of Act of God, or of Latent Defect Feeble under
48
Compensation Laws
III. An Accident Arising Out of the Use of a Motor Vehicle
F.
I.
Salient Features of Motor Vehicles Act, 1988
Relating to Awarding of Compensation in Motor
Accident Cases.
Liability to Pay Compensation in Certain Cases
49
52 - 94
52
on the Principle of No Fault.
II.
III.
Necessity of Insurance Against Third Party Risk.
58
(a)
Authorized Insurer
58
(b)
Certificate of Insurance
58
(c)
Liability
59
(d)
Policy of Insurance
59
(e)
Property
59
(f)
Goods
59
(g)
Reciprocating Country
60
(h)
Third Party
60
Requirement of Insurance Policy and Limits of
63
Liability Under Such Policy.
IV.
Validity of Polices of Insurance Issued in
Reciprocating Countries.
67
V.
VI.
Liability of Insurer and Defence Available To Insurer.
67
Third Party Insurance : Defence Available to the
72
Insurance Companies
VII.
VIII.
IX.
Right of Recovery from Owner to Insurance Company
73
Insolvency of Insured : Rights of Third Party Against Insurers 73
Duty to Give Information as to Insurance.
75
Effect of Settlement Between Insure and Insured.
76
Driving License
77
Gratuitous Passenger
78
XIII.
Effect of Dishonour of Cheque of Insurance Premium
80
XIV.
Effect of Transfer of Vehicle
80
Saving Clause.
80
Effect of Insolvency of Insured.
81
Effect of Death on Certain Causes of Action.
81
Effect of Certificate of Insurance.
81
Effect of Transfer of Certificate of Insurance.
82
Production of Certain Certificates, Licence and Permits etc.
83
Application for Authority to Use Vehicle: Production
85
X.
XI.
XII.
XV.
XVI.
XVII.
XVIII.
XIX.
XX.
XXI.
of Certificate of Insurance
XXII.
XXIII.
Duty to Furnish Particulars of Vehicle Involved in Accident.
86
Special Provisions as to Compensation in Case of
86
Hit and Run Motor Accident.
XXIV.
Refund of Compensation Paid Under Section 161.
88
XXV.
Scheme for Payment of Compensation in Case of
89
Hit and Run Motor Accidents.
XXVI.
Special Provisions as to Payment of Compensation
91
on Structured Formula Basis.
XXVII.
G.
Power of Central Government to Make Rules.
94
Review
95
CHAPTER III:
Claims Tribunal Under Motor 98 - 156
Vehicles Act, 1988
A.
Introduction
B.
Establishment and Composition of Claims Tribunal
I.
II.
III.
99
100 - 109
Setting up of Claims Tribunal.
101
Appointment of Member.
102
Appointment of Member by Name not Necessary
103
(a) Notification of Appointment is Necessary
103
(b) Transfer of Claim Application from District Judge to
104
Claims Tribunal
(c) General Notification designating all the District
104
Judges as Claims Tribunal
(d) Not to Confuse Powers of One Office With Other Office.
IV.
V.
VI.
VII.
105
Qualification for Appointment as Member of Claims Tribunal 105
Other Staff of Claims Tribunal.
106
Claims Tribunal: Powers of Civil Courts.
106
Claims Tribunal: A Substitute of Civil Courts for
108
the purpose of Compensation Claims.
C.
I.
Application for Compensation.
109 - 115
Who can File Claim.
113
Who Can Report to Claims Tribunal in Case of Accident.
113
III.
Essential Documents Required to File Claim.
113
IV.
Court Fees to be Deposited at the Time of Filling Claim.
115
D.
Jurisdiction of Claims Tribunals
II.
I.
Pecuniary Jurisdiction
115 - 129
116
II.
III.
Exclusion of Civil Courts Jurisdiction not Readily Inferred
116
Jurisdiction in Respect of Cases Where Accidents
118
Occurred Prior to Establishment of Tribunal
IV.
Bar on Jurisdiction of Civil Courts
119
V.
Bar on Jurisdiction of Consumer Dispute Redressal Forum
120
VI.
Jurisdiction of Tribunal, Where Collision Between Trains
122
And Motor Vehicle Occurred
VII.
VIII.
Claimant to Choose Place of Jurisdiction
123
Jurisdiction of Tribunal in India, where Accident occurred
124
in Foreign Country
IX.
X.
XI.
XII.
Jurisdiction to Entertain Claim by Indigent Person
124
Death Occurred Due to Heart Attack: No Jurisdiction
126
Transfer of Claims from One Tribunal to Another Tribunal
126
Claimant can Withdraw Applications and File it at
127
Appropriate Place
XIII.
Tribunal Cannot Entertain Application in case of
128
Hit and Run Accident
E. Options Regarding Claims for Compensation in Certain
129
Cases to Claim Compensation in Other Acts.
F. Award of Claims Tribunal.
G. Procedure and Power of Claims Tribunals.
I.
II.
III.
IV.
V.
VI.
VII.
VIII.
Application for Compensation
Amendment of Pleadings: Amendment for Enhancement of
Claim Amount
Notices, Summons, Processes and Service
Written Statement
Summary Procedure for Holding Enquiry
Powers of Court in Respect of Taking Evidence on Oath,
Enforcing Attendance of Witness etc.
Taking of Assistance of Persons Possessing Special
Knowledge
Framing of Issues
130
131 - 140
132
132
133
134
135
135
135
135
Ex Parte Proceedings Dismissal in Default, Restoration etc.
Judgement Finding on all Issues Necessary
Delivery of Copies of Award to Parties within 15 Days
Person Required to Pay Compensation in Terms of Award
to Deposit the Entire Amount within 30 Days.
XIII. Execution of Award of Claims Tribunal
H. Assessment of Claim.
IX.
X.
XI.
XII.
136
137
138
138
139
140
I. Impleadation of Insurer in Certain Cases.
142
J. Award of Interest Where Any Claim is Allowed.
143
K. Award of Compensatory Costs in Certain Cases
144
L. Tribunals Jurisdiction to Set Aside Award Procured By Fraud
145
M. Appeal against Decisions of Claims Tribunal.
146
N. Recovery of Money from Insurer as Arrears of Land Revenue.
149
O. Power of State Government to Make Rules.
150
P. Insurer and No Fault Liability.
150
Q. No Fault Claim can be Proved at Appellate Stage also.
151
R. Ignoring Multiplier in Second Schedule.
151
S. Duty of Claimant to Choose Claim under Sections 163A or 166.
153
T. Review
154
CHAPTER IV:
Award of Compensation to the 157 - 288
Victims of Motor Accident
in India: Judicial Trends
A. Introduction
158
B. No Fault Liability.
159
C. Vis Major
165
D. Application of Principle of Vicarious and Absolute
169 - 185
Liability in Motor Accident Cases.
I.
Vicarious Liability
170
II.
Absolute Liability
172
III.
Absolute Liability and State.
E. Negligence, Contributory Negligence and Application of
182
186 - 276
Doctrine of Res Ipsa Loquitur.
I.
Contributory Negligence and Composite Negligence.
188
Rule of Last Opportunity
189
III.
Contributory Negligence and Children
190
IV.
Application of Doctrine of Res Ipsa Loquitur in
191
II.
Collision Cases
(a) Light Motor Vehicles Colliding with Light Motor
193
Vehicles.
(b) Heavy Motor Vehicles Colliding with Light Motor
195
Vehicles.
(c) Heavy/ Light Motor Vehicles Colliding with Scooters/
202
Motor Cycles.
(d) Heavy Motor Vehicles Colliding with Heavy Motor
212
Vehicles.
V.
Application of Doctrine of Res Ipsa Loquitur in Non-Collision 220
Cases
(a) Motor Vehicles Hitting Pedestrians.
220
(b) Motor Vehicles Hitting Cyclist.
233
(c) Motor Vehicles Involved in Accident While Trying to
240
Save Cattle.
(d) Vehicles Falling in Ditches, Canals, Washed Away in
243
Floods, Hitting Culverts etc.
(e) Passengers Falling Down While Boarding/ Sitting on
248
the Vehicle.
(f)
Motor Cycle/ Scooter Accident Involving Pillion Riders.
250
(g) Parking Vehicles on Public Places Living the key.
252
(h) Motor Vehicles Dashing Against Trees.
254
(i)
Accident Due to Explosion of Tankers/ Fire in Motor
258
Vehicles.
(j)
F.
I.
Accident Due to Tyre Burst.
260
(k) Accidents Due to Mechanical Breakdown.
265
(l)
271
Motor Vehicles Turned Turtle.
Treatment of Compensation Amount
276- 280
Award of Compensation in Favour of Minor Claimants
277
Compensation Awarded to Illiterate Claimants
277
III.
Compensation to Semi-Literate Claimants
277
IV.
Compensation Amount Awarded to Literate Claimants
278
Award of Compensation Widow Claimants
278
Withdrawal of Amount in case of Personal Injury
278
Withdrawal of Amount in Case of Emergency
279
No Loan or Advance Against the Fixed Deposit
279
II.
V.
VI.
VII.
VIII.
Amount of Compensation
IX.
X.
Duty of Bank to Affix Note on Fixed Deposit Receipt.
279
Cases Settled Outside the Court.
280
G. Driving Licence and Liability of Insurance Company
I.
280 - 282
Driving Licence
280
Forgery of Driving Licence
281
III.
Liability of Insurance Company
281
IV.
Amount paid by Insurance Company
281
Policy of Insurance
282
II.
V.
H. Third Party and Liability of Insurance Company
I.
Insurance Company cannot Refuse to Meet its Liability
282 - 283
282
Qua Third Party
II.
Fraud Committed by the Third Party
I. Grant of Compensation: Miscellaneous Trends.
I.
Ensuring Compensation to All Victims.
283
283- 286
283
II.
Collection of One Time Life Time Third Party
284
Insurance Premium.
III.
Alternative to Present System of Third Party Insurance.
284
IV.
Establishment of Road Safety Bureau.
285
Unified and Comprehensive Law Required.
285
Rectification of Second Schedule to Motor Vehicles
285
V.
VI.
Act, 1988.
J.
Review
286 - 288
CHAPTER V: Lok Adalats and Motor Accident
289 - 309
Claims
A. Introduction.
B. Establishment, Powers and Jurisdiction of Lok Adalats
I.
290
292 - 296
Organization of Lok Adalats.
292
Cognizance of Cases by Lok Adalats.
293
III.
Award of Lok Adalats
295
IV.
Powers of Lok Adalat/ Permanent Lok Adalats.
295
II.
C. Refund of Court Fee.
297
D. Jurisdiction of Lok Adalats.
297
E. Idea Behind Formation of Lok Adalats.
297
F. Compromise on Behalf of Unsound Mind and Minor Persons.
298
G. Reasonableness of Amount of Compromise Settlements
299
Arrived at Lok Adalats.
H. Validity of Compromise Settlements in Lok Adalats Signed
300
by Advocate on Behalf of Party.
I. Award of Lok Adalats Even Without Compromise.
300
J. Dismissal of Claims by Lok Adalats in Case of Default
301
by Parties.
K. Award of Lok Adalat and Appeal.
301
L. Award of Lok Adalat not Open to Interference Merely
304
Because Amount Awarded was not Adequate.
M. Exemption from Court Fee
304
N. Sanctity of Award of Lok Adalat and Appeal
305
O. Civil Procedure Code, 1908 Dealing With Settlement
306- 308
of Dispute Out of Court.
I.
II.
Settlement of Disputes Outside the Court.
306
Direction of the Court to Opt for Any One Mode of
307
Alternative Dispute Resolution.
III.
Appearance Before the Conciliation Forum, or Authority.
307
IV.
Appearance Before the Court Consequent to the
308
Failure of Efforts of Conciliation.
P. Review
308 - 309
CHAPTER VI: Criminal Liability in Motor
310 - 349
Accidents.
A. Introduction
311
B. Law of Crimes and Motor Accidents
313
C. Tort and Crime Constituted by the Same Set of
315
Circumstances
D. Offences in Relation to Use of Motor Vehicles
I.
317 - 320
Rash Driving or Riding on Public Way
317
Causing Death by Negligence.
317
III.
Act Endangering Life or Personal Safety of Others
318
IV.
Causing Hurt by Act Endangering Life or Personal
319
II.
Safety of Others.
V.
Causing Grievous Hurt by Act Endangering Life
319
or Personal Safety of Others.
E. Proof of Negligence.
320
F. Grant of Compensation Hearing of Accused Necessary
322
G. Criminal Injury or Murder as Accident
324
H. Judicial Application of the Criminal Law in the Motor
326 - 348
Accident Cases
I.
Res Ispa Loquitur: Not a Special Rule of
326
Substantive Law
II.
Mere Careless Not Sufficient
333
III.
Burden of Proof in Certain Cases
336
IV.
Rash and Negligent Driving
339
Culpable Rashness
343
VI.
Proof of Criminal Liability
345
I.
Review
V.
CHAPTER VII :
348 - 349
Conclusions and Suggestions
A. General
B. Conclusions
I.
350 - 386
351
352 - 369
Dubious Distinction.
352
Accident: Pre- Condition in MACT Cases
353
III.
Accident Arising Out of Motor Vehicle
353
IV.
Status of Gratuitous Passenger
354
Claims in Hit and Run Cases
354
Payment of Compensation on Structured Formula Basis
355
MACT is a Tribunal
355
Tribunal to be Deemed as Civil Court
356
Application for Compensation Must be Complete
356
II.
V.
VI.
VII.
VIII.
IX.
and Proper
X.
XI.
XII.
Amendment in Claim Application
357
Jurisdiction of Claims Tribunal
358
Claimant can Withdraw Applications and file it at
359
Appropriate Place
XIII.
Award of Claim Tribunal and Appeal
359
XIV.
Execution of Award and Recovery of Amount as
360
Land Revenue.
XV.
Principle of Tortious Liability and Motor Accident
361 - 364
Cases
XVI.
XVII.
XVIII.
XIX.
XX.
(a) No Fault Liability
361
(b) Act of God
362
(c) Vicarious Liability
362
(d) Strict and Absolute Liability
363
(e) Negligence and Contributory Negligence
363
(f) Res Ispa Loquitur
364
Treatment and Disbursement of Compensation Amount.
365
Liability of Insurance Company
365
Lok Adalat and Motor Accident Cases.
366
Motor Accident as Crime: Liability to Pay Compensation
367
Felonious Tort
369
C. Suggestions
I.
Grant of Compensation and Treatment Thereof
369 - 386
370- 374
(a) Ensuring that all accident victims get compensation
370
(b) Payment of Compensation Without Delay
370
(c) Securing compensation to all victims
371
of accidents involving uninsured vehicles
(d) Disbursement of Compensation
371
i. Minors
371
ii. Illiterates
372
iii. Semi-Literates
372
iv. Literates
372
v. Widows
373
(e) Withdrawal of Amount of Compensation in Certain Cases
373
i. Withdrawal in case of Personal Injury
373
ii. Withdrawal in Case of Emergency
373
(f) Disbursement of Compensation: Duties of Banks
i. No Loan or Advance Against the Fixed Deposit
373
373
of Amount of Compensation
ii. Bank must Affix Note on Fixed Deposit Receipt
(g) To Ensure Just and Fair Compensation in case of
374
374
out of Court Settlement
(h) To Ensure the Application of Principle of Structural
374
Compensation Formula
II.
(i) Compensation in Hit and Run Cases
374
Functioning of Insurance Company
375
(a) Payment of Compensation as per Standard Formula
375
(b) Treatment of Injured of Motor Accident
375
(c) Lodging of Criminal Complaint for Fake / Forged
376
Driving Licence
(d) Mitigation of Fake Cases
376
III.
Lok Adalats
376
IV.
To Ensure Effective Functioning of Police Authorities
377
V.
To Ensure Speedy and Effective Functioning of Claims
378
Tribunals
(a) To Treat Reports of Accident as Application for
378
Compensation
(b) Determination of Compensation where no Dispute
378
by Insurer
(c) To Dispose of the Claim Application within a Time Frame
378
(d) Not to treat Motor Accident Cases as Regular Civil Matters 379
VI.
VII.
Amendment to Existing Law
379
Rectification of Second Schedule to Motor Vehicles
379
Act, 1988
VIII.
Modification in Insurance Policies
380
IX.
Limitation to File Claim for Compensation
381
X.
Drunken Driving: Prevention and Control
381
Road Safety Policy : Planning and Execution
381
(a) Regular Check up and Inspection of Vehicles
382
(b) Strict Procedure for Allotment of Driving Licence
382
(c) Prohibition of Entry of Animals on Public Road
382
(d) Supervision and Control of Speed of Vehicle
382
(e) Ban on Plying of Old Vehicles
382
(f) Road Safety Bureau
382
(g) Literacy Programs Regarding Rules of Road
383
(h) Reduction of Number of Vehicles on Road
384
(i) To encourage Public Transport system
384
(j) To encourage pooling
384
(k) Permits to Taxis or Autos should be Allotted to
384
XI.
Ply the same on Alternate Days
(l) To Discover Alternate of Road Transport
385
(m) To Establish Trauma and First Aid Centres
385
for Accident Victims
(n) Tracking Down Traffic Offenders
385
(o) Deterrent Punishment
385
(p) Inference of Negligence by applying principle of
386
Res Ispa Loquitur
(q) Strict Application of Section 196 of Motor Vehicles
386
Act, 1988
Appendix I
Format of Application for Compensation
387 - 390
in Motor Accident
Appendix II
Glossary
391 - 398
Appendix III
Traffic Offences and Penalties in India
399 - 407
Appendix IV
Ten Tips for Road Safety
408 408
Appendix V
Traffic Police Signals
409 - 410
Bibliography
411 - 413
