How to file motor accident claim?

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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.

Step 1.

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.

Step 2

Having regard to the age of deceased and active career, the multiplication method should be selected

INJURY CASES



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.

Advocate Siddhant Sharma LawRato