Accidental Claims

Law Relating to Motor Accidents in India

ENFORCEMENT OF SECTION 166(4) OF THE MOTOR VEHICLES ACT, 1988

1. Section 166 (4) of the Motor Vehicles Act was also incorporated in 1994 and it provides that the Claims Tribunal shall treat the Accident Information Report (AIR) under Section 158(6) as a claim petition. The object of Section 166(4) of the Motor Vehicles Act is that poor and helpless victims of the road accident may be ignorant of their rights and, therefore, the cognizance of the claim for compensation be taken by the Claims Tribunal directly on the
basis of the Accident Information Report of the police without the requirement of a separate claim petition to be filed by the claimant.

However, this provision was not being enforced as the police was not filing the Accident Information Report with the Claims Tribunal.With the undertaking of the police and the directions of the High Court to the police to strictly enforce Section 158(6) of the Motor Vehicles Act, the Delhi High Court has given following directions to
the Motor Accident Claim Tribunals on 8th June, 2009 for enforcement of Section 166(4) of the Motor Vehicles Act:-

“(i) Maintenance of a register for recording of the FIR which shall be received daily from the police stations. The Accident Information Report and private claim petition filed in respect of an FIR be marked in this register.

(ii) Maintenance of a separate institution register for registering the AIR as miscellaneous application.

(iii) Listing of AIR on the judicial side and issuance of notice to the claimant, owner, driver and Insurance
Company.

(iv) Notice to the claimant, owner and driver be served through the Investigating Officer.

(v) Notice of Insurance Company be served through the nominated counsel of each company.

(vi) AIR be listed as a separate category in the cause list as miscellaneous application.

(vii) After appearance of the claimant, the AIR be registered as a claim petition.

(viii) If the claimant has filed a separate claim petition,the AIR be tagged with the claim petition.”

2. All the Motor Accident Claims Tribunals have set up the aforesaid system for compliance of Section 166(4) of the Motor Vehicles Act, 1988.

3. The net effect of aforesaid directions is that the Delhi Police is filing Accident Information Report along with the relevant documents including driving licence, registration cover, insurance policy, fitness and permit of the offending vehicle, before the Tribunal within 30 days of the accident. Simultaneously, the Investigating Officer is also producing the owner, driver, eyewitness and the claimants before the claims Tribunal. Insurance

Companies are already represented through their retainers and the Claims Tribunals straight away proceed to record the statements of all concerned, verify the documents and pass an award. 25 cases of accident have been settled by the Claims Tribunals from 1st July, 2009 to 20th July, 2009 on the basis of the AIR filed by Delhi Police.

SCOPE OF SECTIONS 168 AND 169 OF THE MOTOR VEHICLES ACT, 1988

Section 168 of the Motor Vehicles Act provides that the Tribunal shall hold an inquiry into the claim. Section 169 provides that the Claims Tribunals shall follow such summary procedure as it thinks fit. However, it has been noticed that the Tribunals have not been conducting any inquiry but were conducting a normal civil trial due to which the disposal of the claim petition was getting unduly delayed. Vide order dated 22nd May, 2009 in the case of Somari Devi Vs. Ragwar Singh, FAO No.884/2003, the directions have been issued by Delhi High Court to the Tribunals to conduct an inquiry into the claim petition instead of a protected civil trial.

JUDGMENT ON THE DOCTRINE OF SOVEREIGN IMMUNITY

Air Force Truck killed a person in a motor accident on 22nd May,2009. The Tribunal awarded a sum of  s.4,74,488/- against which the Air Force filed the appeal before the High Court raising the plea of sovereign immunity.

The law with respect to sovereign immunity is well-settled by the Hon’ble Supreme Court in various judgments. The rule of immunity in favour of Crown based on common law in the United Kingdom has disappeared from the land of its birth and it has no validity in our country after the Constitution. The Hon’ble Supreme Court has further held that Article 300 of the Constitution has saved the right of Parliament to enact such law but no law has been enacted till now. The Maxim that King can do no wrong or that the Crown is not answerable in tort has no place in Indian jurisprudence where the power vests, not in the Crown, but in the Government, which has to act in accordance with the provisions of the Constitution and would be answerable to the people for any violation thereof. The Hon’ble Supreme Court in the case of Pushpa Thakur v. Union, 1984 ACJ 559, has held that the doctrine of sovereign immunity has no application so far as claims for compensation under the Motor Vehicles Act are concerned.

INSURANCE COMPANIES CANNOT DEDUCT TDS UNDER SECTION 194-A OF THE INCOME TAX ACT FROM THE INTEREST ON THE AWARD AMOUNT DEPOSITED UNDER AN INTERIM ORDER OF THE COURT

It came to the notice of Delhi High Court that the Insurance Companies had been deducting TDS from the interest on award amount directed to be deposited by an interim order pending final determination of the appeals. After deduction, the TDS certificate is issued in the name of the Registrar General of the Court. The claimants cannot get the refund/adjustment of the TDS deducted and they suffer loss of TDS amount to that extent.

Vide judgment dated 26th March, 2009 in MAC.APP.596/2008, Delhi High Court held that the deposit of award amount including interest with the Court under interim direction of the Court pending final determination of the appeal is only an inchoate right and, therefore, Section 194-A of the Income Tax Act does not apply and no TDS can
be deducted.

SCOPE OF SECTION 165 OF THE INDIAN EVIDENCE ACT, 1872

Section 165 of the Indian Evidence Act empowers the Judge to ask any question, in any form, at any time, of any witness or of parties, about any fact, relevant or irrelevant and may order production of any document or thing. The object of Section 165 of the Indian Evidence Act is that the Judge is not merely to listen to the evidence put before him but to inquire to the utmost into the truth of the matter and question witnesses on points which the lawyers for the parties have either overlooked or left obscure or willfully avoided.

SCOPE OF SECTION 167 OF THE INDIAN EVIDENCE ACT,1872

Improper admission or rejection of evidence is not by itself a ground for reversal of a decision, if there is other evidence to support it. Where admissible evidence has been improperly rejected or inadmissible evidence has been admitted by the Judge, such improper reception or rejection of evidence shall not of itself be a ground for new trial or reversal of any decision in any case, unless substantial wrong or miscarriage of justice has been thereby occasioned; or, in other words, if the Court considers that after leaving aside the evidence that has been improperly admitted, there was enough evidence on the record to justify the decision of the lower court, or that if the rejected evidence were admitted the decision ought not have been affected thereby, no Court of appeal should set it aside.

Procedure at Motor Accident Claims Tribunal

MACT Courts are presided over by Judicial Officers from Delhi Higher Judicial Service. Now, these Courts are under direct supervision of the Hon’ble High Court.

Following documents should accompany the petition: –

1. Copy of the FIR registered in connection with said accident, if any.
2. Copy of the MLC/Post Mortem Report/Death Report as the case may be.
3. The documents of the identity of the claimants and of the deceased in a death case.
4. Original bills of expenses incurred on the treatment alongwith treatment record.
5. Documents of the educational qualifications of the deceased, if any.
6. Disability Certificate, if already obtained, in an injury case.
7. The proof of income of the deceased/injured.
8. Documents about the age of the victim.
9. The cover note of the third party insurance policy, if any.
10.An affidavit detailing the relationship of the claimants with the deceased.

Vide order dated 16.12.2009 in para No.5, the Hon’ble Court (“Rajesh Tyagi & Ors. Vs. Jasbeer Tyagi & Ors.” MACT, FAO 842/2003) observed that:

“The Claims Tribunal Agreed Procedure formulated by the Committee of the Secretaries/nominees of the Ministries of Road Transport and Highways; Finance(Department of Insurance); Law, Justice and Company Affairs, and Joint
Commissioner of Police (Northern Range) is accepted subject to the following :

i. The Investigating Officer of the Police shall intimate the factum of the accident to the Claims Tribunals within 48 hours of the accident. If the insurance particulars are available by that time, the Investigating Officer shall also send
the intimation to the concerned Insurance Company by e-mail. The factum of the accident shall also be uploaded by Delhi Police on its website. The intimation of the accident shall contain all relevant particulars including the
date, time and place of accident, registration number of the offending vehicle, policy particulars, names and addresses of the owner and driver of the offending vehicle and the name and mobile number of the Investigating
Officer.

ii. Immediately upon receipt of intimation, the Insurance Company shall appoint a Designated Officer for each case. The Designated Officer shall be responsible for dealing/processing of that case and for taking decision for the
amount of compensation payable in accordance with law after the Detailed Accident Report by the police.

iii. The Investigating Officer of Police shall collect the relevant evidence relating to the accident as well as the computation of compensation. The Investigating Officer shall take photographs of the scene of the accident from all angles. In the case of death, the Investigating Officer shall collect the proof of age, occupation, income of the deceased and number of legal representatives of the deceased. In the case of injuries, the Investigating Officer shall collect proof of injuries suffered and expenses incurred by the injured. The Investigating Officer shall also collect the relevant documents including driving license, registration certificate, fitness and permit of the offending vehicle,
death certificate, post postmortem report, birth certificate, salary slip,certificate of the employer, Income-tax returns, MLC, prescription slips, bills for medical expenses and shall also verify the genuineness of the said
documents.

iv. The Investigating Officer shall file a Detailed Accident Report (DAR) with the Claims Tribunal within 30 days of the accident. The Detailed Accident Report shall be accompanied by the report under Section 173 Cr.P.C., FIR, MLC,
Post Mortem Report, photographs, site plan, mechanical inspection report, seizure memo, death certificate, proof of age, occupation and income of the deceased and age of the legal representatives of the deceased in the case of
death, proof of injuries and expenses in the case of injuries along with affidavit about the verification of the said documents. Copy of the Detailed Accident Report shall simultaneously be furnished to the Insurance company as well as to the claimants.

v. The Investigating Officer of the Police shall also furnish a copy of Detailed accident Report along with complete documents to Secretary, Delhi Legal Services Authority, Central Office, Pre-Fab Building, Patiala House Courts,
New Delhi. Delhi Legal Services Authority shall examine each case and assist the Claims Tribunal in determination of the just compensation payable to the claimants in accordance with law.

vi. Where the Investigating Officer is unable to complete the investigation of the case within 30 days for reasons beyond his control, such as cases of hit and run accidents, cases where the parties reside outside the jurisdiction of the Court cases, where the driving license is issued outside the jurisdiction of the Court, or where the victim has suffered grievous injuries and is undergoing treatment, the Investigating Officer shall approach the Claims Tribunal for extension of time whereupon the Claims Tribunal shall suitably extend the time in the facts of each case.

vii. The Investigating Officer shall produce the driver, owner, claimant and eyewitnesses before the Claims Tribunals along with the Detailed Accident Report. However, if the Police is unable to produce the owner, driver, claimant
and eye-witnesses before the Claims Tribunal on the first date of hearing for the reasons beyond its control, the Claims Tribunal shall issue notice to them to be served through the Investigating Officer for a date for appearance not later than 30 days. The Investigating Officer shall give an advance notice to the concerned Insurance Company about the date of filing of the Detailed Accident Report before the Claims Tribunal so that the nominated counsel for
the Insurance Company can remain present on the first date of hearing before the Claims Tribunal.

viii. The concerned Registration Authority of the Government of NCT of Delhi shall furnish the report in Form-D of the Delhi Motor Accident Claims Tribunal Rules, 2008 to the Police and Claims Tribunal within 15 days of the receipt of the request from the police or the direction from the Tribunal in Form-E. The Registration Authority shall also assist the Police in verification of the documents.

ix. The Claims Tribunals shall examine whether the Detailed Accident Report is complete in all respects and shall pass appropriate order in this regard. If the detailed Accident Report is not complete in any particular respect, the Claims Tribunal shall direct the Investigating Officer to complete the same and shall fix a date for the said completion.

x. The Claims Tribunals shall treat the Detailed Accident Report filed by the Investigating Officer as a claim petition under Section 166(4) of the Motor Vehicles Act. However, where the Police is unable to produce the claimants
on the first date of hearing, the Claims Tribunal shall initially register the Detailed Accident Report as a miscellaneous application which shall be registered as a main claim petition after the appearance of the claimants.

xi. The Claims Tribunal shall grant 30 days time to the Insurance Company to examine the Detailed Accident Report and to take a decision as to the quantum of compensation payable to the claimants in accordance with law.
The decision shall be taken by the Designated Officer of the Insurance Company in writing and it shall be a reasoned decision. The Designated Officer of the Insurance Company shall place the written reasoned decision
before the Claims Tribunal within 30 days of the date of complete Detailed Accident Report.

xii. The compensation assessed by the Designated Officer of the Insurance Company in his written reasoned decision shall constitute a legal offer to the claimants and if the claimants accept the said offer, the Claims Tribunal shall
pass a consent award and shall provide 30 days time to the Insurance Company to make the payment of the award amount. However, before passing the consent award, the Claims Tribunal shall ensure that the claimants are awarded just compensation in accordance with law. The Claims Tribunal shall also pass an order with respect to the shares of the claimants and the mode of disbursement.

xiii. If the claimants are not in a position to immediately respond to the offer of the Insurance Company, the Claims Tribunals shall grant them time not later than 30 days to respond to the said offer.

xiv. If the offer of the Insurance Company is not acceptable to the claimants or if the Insurance Company has any defence available to it under law, the Claims Tribunal shall proceed to conduct an inquiry under Sections 168 and 169 of the Motor Vehicles Act and shall pass an award within a period of 30 days thereafter."

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