Comments on the operating environment in which National operates

Comments on the operating environment in which National operates

MOTOR THIRD PARTY: UNDERWRITING & CLAIMS -BY ANUJ SINHA HO MOTOR TP DEPARTMENT India has largest number of road accidents in the world. More than one lakh people die in road accidents in a year and the average number of deaths per day are more than 300, meaning thereby that more than ten persons die every hour. STANDARD FORM FOR LIABILITY ONLY POLICY INDIAN MOTOR TARIFF GENERAL REGULATIONS DESCRIPTION

GR-3 TYPES OF POLICIES: There are two types of Policies : (i) Liability Only Policy: This covers Third Party Liability for bodily injury and/ or death and Property Damage .Personal Accident Cover for Owner-Driver is also included. (ii) Package Policy: This covers loss or damage to the vehicle insured in addition to (i) above. Restricting the scope of cover under Section-I (loss of or damage to the vehicle insured) of the Package policy without any reduction in Tariff rates is permitted. Excepting this, no alteration or extension of any of the Covers, Terms, Conditions, Exclusions, etc. of any of the Policies/Endorsements laid down in this tariff is permitted without prior approval of the TAC. GR-11 PERIOD OF INSURANCE- Unless specifically stated otherwise, premiums quoted in the Schedules under various Sections of the India Motor Tariff are the premiums payable on policies issued or renewed for a period of twelve months. GR-17

TRANSFERS- On transfer of ownership, the Liability Only cover, either under a Liability Only policy or under a Package policy, is deemed to have been transferred in favour of the person to whom the motor vehicle is transferred with effect from the date of transfer. GR-22 Cover Note: (i) Cover Notes insuring Motor Vehicles are to be issued only in Form 52 in terms of Rule 142 Sub-Rule (1) of the Central Motor Vehicles Rules 1989. (Refer Section 6 of the India Motor Tariff). (ii) In terms of Rule 142, Sub-Rule (2) of Central Motor Vehicles Rules 1989, a Cover Note shall be valid for a period of sixty days from the date of its issue and the insurer shall issue a policy of insurance before the date of expiry of the Cover Note. INDIAN MOTOR TARIFF GENERAL REGULATIONS DESCRIPTION

GR.23 Certificate of Insurance : A Certificate of Insurance for a Motor Vehicle is to be issued only in FORM 51 in terms of Rule 141 of Central Motor Vehicle Rules 1989. (Refer Section 6 of the India Motor Tariff). GR.24. Cancellation of Insurance (a)A policy may be cancelled by the insurer by sending to the insured seven days notice of cancellation by recorded delivery to the insureds last known address and the insurer will refund to the insured the pro-rata premium for the balance period of the policy. A policy may be cancelled at the option of the insured with seven days notice of cancellation and the insurer will be entitled to retain premium on short period scale of rates for the period for which the cover has been in existence prior to the cancellation of the policy. The balance premium, if any, will be refundable to the insured. Refund of premium will be subject to: i) there being no claim under the policy, and ii) the retention of minimum premium as specified in the Tariff. (c ) A policy can be cancelled only after ensuring that the vehicle is insured elsewhere, at least

for Liability Only cover and after surrender of the original Certificate of Insurance for cancellation. (d) Insurer should inform the Regional Transport Authority (RTA) concerned by recorded delivery about such cancellation of insurance Applicable to all classes of vehicles with suitable amendments in Limitation as to us Jg;pgklkgop;gkoprkfrllkfloffff LIABILITY TO THIRD PARTIES 1. Subject to the Limit of liability as laid down in the schedule hereto, the company will indemnify the insured in the event of accident caused by or arising out of the use of Motor Vehicles anywhere in India against all sums including claimants costs and expenses which the insured shall become legally liable to pay in respect of (i) death or bodily injury to any person so far as it is necessary to meet the requirements of Motor Vehicles Act. (ii) damage to any property other than property belonging to the insured or held in trust or in the custody or control of the insured upto the limit specified in the schedule.

2. The company will also pay all costs and expenses incurred with its written consent. 3. In terms of an subject to the limitations of the indemnity which is granted by this policy to the insured, the company will indemnify any driver who is driving the Motor Vehicle on the insureds order or with insureds permission provided that such driver shall as though he/she were the insured observe fulfill and be subject to the terms exceptions and conditions of this policy in so far as they apply. 4. In the event of death of any person entitled to indemnity under this policy the Company will in respect of the liability incurred by such person indemnify his/her personal representative subject to 5. The company may its own option (A) Arrange for representation at any Inquest or Fatal Inquiry in respect of any death which may be the subject of indemnity under this policy and (B) Undertake the defense of proceedings in any Court of Law in respect of any act or alleged offence causing or relating to any event which may be the subject of indemnity under this policy. Applicable to all classes of vehicles with suitable amendments in Limitation as to us Jg;pgklkgop;gkoprkfrllkfloffff

GENERAL EXCEPTIONS 1. The company shall not be liable in respect of any claim arising whilst the vehicle insured herein (a) Being used otherwise than in accordance with the Limitations as to Use or (b) Being driven by or is for the purpose of being driven by him/her in the charge of any persons other than a Driver as stated in the Drivers clause. 2. The Company shall not be liable in respect of any claim arising out of any contractual liability. 3. Except so far as is necessary to meet the requirements of Motor Vehicles Act, the Company shall not be liable in respect of death arising out of and in the course of employment of a person in the employment of the insured or in the employment of any person who is indemnified under this policy or bodily injury sustained by such person arising out of and in course of such employment. 4. Except so far as is necessary to meet the requirements of the Motor Vehicles Act, the Company shall not be liable in respect of death or bodily injury to any person (other than persons carried by reason of or in pursuance of a contract of employment) being carried in or upon or entering or mounting or alighting from the Motor Vehicles at the time of the occurrence of the event out of which any claim arises. 5. The Company shall not be liable in respect of any liability directly or indirectly or proximately or remotely occasioned by contributed by or traceable to or arising out or in connection with war, invasion, the Act of foreign enemies, hostilities or war like operations 6. The company shall not be liable in respect of any liability directly or indirectly caused by or

contributed to by or arising from nuclear weapons material. Applicable to all classes of vehicles with suitable amendments in Limitation as to us Jg;pgklkgop;gkoprkfrllkfloffff LIMITATION AS TO USE The policy covers use for any purpose other than a) b) c) d) e) f) g) Hire or reward Carriage of goods (other than samples or personal luggage)

Organized racing Pace making Speed testing Reliability trials Any purpose in connection with Motor Trade INDIAN MOTOR TARIFF IMT DESCRIPTION IMT 13 USE OF VEHICLE WITHIN INSUREDS OWN PREMISES(Applicable to all classes except as otherwise provided in the tariff ) IMT 15 PERSONAL ACCIDENT COVER TO THE INSURED OR ANY NAMED PERSON OTHER THAN

PAID DRIVER OR CLEANER (Applicable to private cars including three wheelers rated as private cars and motorized two wheelers with or without side car [not for hire or reward]) IMT 28 LEGAL LIABILITY TO PAID DRIVER AND/OR CONDUCTOR AND/OR CLEANER EMPLOYED IN CONNECTION WITH THE OPERATION OF INSURED VEHICLE (For all Classes of vehicles.) IMT 29 LEGAL LIABILITY TO EMPLOYEES OF THE INSURED OTHER THAN PAID DRIVER AND/OR CONDUCTOR AND/OR CLEANER WHO MAY BE TRAVELLING OR DRIVING IN THE EMPLOYERS CAR {Private Cars only/ Motorised two wheelers (not for hire or reward)} IMT 39

Legal Liability to persons employed in connection with the operation and/or maintaining and/or Loading and/or Unloading of Motor Vehicles (For GOODS VEHICLE) IMT 44 Indemnity to Hirer - Package Policy - Negligence of the Owner or Hirer. IMT 45 Indemnity to Hirer - Liability only Policy -- Negligence of the Owner or Hirer. 9 STAGES IN ROAD TRAFFIC ACCIDENT CASE VIS A VIS RELEVANT STATUTES, RULES & PROVISIONS CONTRACT OF INDEMNITY CONTRACT OF INDEMNITY SEC. 124

: A contract by which one party promises to save the other from loss caused to him by the conduct of the Promisor himself, or by the conduct of any other person, is called a contract of indemnity All Contracts of Insurance are contracts of indemnity except life insurance. In such contracts an insurance company ( insurer)undertakes to indemnify the respective party(assured), of the losses suffered by the assured in the manner and to the extent agreed in the contract

Parties in a contract of Indemnity :Indemnifier (Promisor). Indemnity Holder/Indemnified ( Promisee). Settled principle of law : After compensating the loss to indemnity holder, indemnifier is entitled to all the ways and means by which person indemnified might have protected himself for the loss. PRINCIPLE OF SUBROGATION Rights of Indemnity Holder When Sued : Can recover all damages incurred /Paid by him, Can recover costs incurred, Can recover sums paid under compromise Time of Commencement of Indemnifiers Liability: When indemnity holder incurs an absolute liability though not actual loss. NON COVERAGE ON ACCOUNT OF POLICY BREACHED OR LAPSED Dishonour of cheque :THE INDIAN CONTRACT ACTSection 25- An agreement made without consideration is VOID (VOID ab inito i.e. right from inception) Section 65- A contract becomes VOID if any person who has received any advantage under such a contract is bound to restore it to the person from whom he received it. So even if insurer has disbursed the, amount covered by the

policy to the insured before the cheque was returned dishonour, the insurer is entitled to get the money back. NEGOTIABLE INSTUMENT ACTSection 138: Dishonour of cheque An offence imprisonment upto six months or fine up to twice of the cheque amount or both. THE INSURANCE ACT, 1938 64-VB. No risk to be assumed unless premium is received in advance(1) No insurer shall assume any risk in India in respect of any insurance business on which premium is not ordinarily payable outside India unless and until the premium payable is received by him or is guaranteed to be paid by such person in such manner and within such time as may be prescribed or unless and until deposit of such amount as may be prescribed, is made in advance in the prescribed manner. (2) For the purposes of this section, in the case of risks for which premium can be ascertained in advance, the risk may be assumed not earlier than the date on which the premium has been paid in cash or by cheque to the insurer. Explanation- Where the premium is tendered by postal money order or cheque sent by post, the risk may be assumed on the date on which the money order is booked or the cheque is posted, as the case may be.

Insurance Regulatory and Development Authority (Manner of Receipt of Premium) Regulations, 2002 - Provided that in the case of a policy of general insurance that where the remittance made by the proposer or the policyholder is not realized by the insurer, the policy shall be treated as void ab-initio. PROVISIONS OF MOTOR VEHICLES ACT, 1988 INSURANCE OF MOTOR VEHICLES AGAINST THIRD PARTY RISKS Sec.145 of MV Act,1988Few of the relevant definitions are as follows: Authorised InsurerCarrying on General insurance business in India under GIBNA, 1972. LiabilityThe term liability includes no fault liability. Policy of InsuranceExpression includes certificate of insurance. PropertyIncludes goods carried in the motor vehicle, roads, bridges, culverts, causeways, trees, posts and milestones. Third PartyIncludes the governmentSec. 145(g)

Sec.146 of the MV ACT,1988Necessity of insurance against Third Party riskNo person shall use, except as a passenger, or cause or allow any other person to use, a motor vehicle in a public place, unless there is in force in relation to the use of the vehicle, a policy of insurance complying with the provisions of chapter-XI of the Act. MOTOR VEHICLE & PUBLIC PLACE Vehicle carries or meant to carry dangerous or hazardous goodsAdditional policy of insurance under the Public Liability Insurance Act, 1991. Sec.2(34) of MV Act, 1988Public PlaceRoad, Street, way or other place, whether a through fare or not, to which the public have a right of access Covers even places of private ownership where members of public have access whether free or controlledAccident in garage in the process of reversing a tractorRoad inside the gate of the secretariat. Sec.2(28) of MV Act, 1988Motor Vehicle means any mechanically propelled vehicle adopted for use upon roads whether the power of propulsion is

transmitted thereto from an external or internal source. Violation of Sec.146No insurancePunishable u/s196Upto three months imprisonment or with fine upto Rs. 1,000, or with both. Compulsory Insurance not applicable to vehicle owned by Central Government or State Government and used for government purposes. Insurance with two insurers Effect Claimants can recover amount from either Paying insurer can settle its score with the other insurer Ganga Ram Patel Vs. Md. Jahid Khan, 2008 ACJ 2763 (MP) (DB). (Doctrine of Contribution shall apply) Minu V. Mehta Vs. Dr. Balakrishna Ramachandra Nayan Honble Supreme Court has observed the concept of owners liability without any negligence is opposed to the basic principles of law. The mere fact that a party received an injury arising out of the use of a vehicle in a public place cannot justify fastening liability on the owner. It may be that a person bent upon committing suicide may jump before a car in motion and, thus, get himself killed. We cannot perceive by what reasoning the owner of the car could be made liable.

The Motor Third Party policies have to comply with the requirements of the MV Act. The compensation payable to the claimants is determined by the Motor Accident Claims Tribunals (MACT) established under the MV Act. DRIVING LICNESE The Driver & His LicenseThe policies of motor vehicle insurance usually describe the driver as a person engaged in driving. The motor insurance policies, in relation to third parties empahasise two requisite in particular, i.e. the person engaged in driving a vehicle must be a duly licensed driver and must not be disqualified for holding a driving license. Sec.3Necessity for driving licenseNo person shall drive a motor vehicle in any public place unless he holds an effective driving license. Sec.4 Age LimitMinimum age eighteen yearsSixteen years for motor cycle with engine capacity not exceeding 50 cc Twenty years for transport vehicle.

Sec. 6Restriction on the holding of second licence for the same type of vehicle PERMIT Sec. 66(Chapter V)Control of Transport Vehicles-- Necessity for PermitsOwner cannot ply the vehicle off the route even if it is not actually carrying any passenger . Object is to ensure safety of passengersNo necessity of permit when a road or place is not a public place or a highway. Whether permit is required before granting registration Authorizing the use of the vehicle in a particular place as per the manner of use. Permit necessary for all commercial vehicles (passenger as well as goods vehicle) Stage carriage permit holder may be authorised to use the vehicle as a goods carriage either when carrying passengers or not. Drawing of trailerGoods carriage permit.

WHERE PERMIT NOT REQUIRED Permit not necessary for the following vehicles: Transport vehicle owned by Central or State Government and used for Government purposes,Transport vehicle owned by a Local authoritry or under contract with a Local authority and used solely for road cleansing,road watering or conservancy purposes. For police, fire brigade or ambulance purposes. Used solely for the conveyance of corpses and the mourners accompanying the corpses. Used for towing a disabled vehicle. Used to remove goods from disbaled vehicle to a place of safety. Used for any other public purposes prescribed by State Govt. Goods vehicle with GVW not exceeding 3000 kilograms. Purchased in one state and proceeding to another state. Diverting through another route due to flood, earthquake etc. DUTY OF DRIVER AND OWNER

Sec.133Duty of vehicle owner to give information. The vehicle owner shall on demand by a police officer, furnish the name and address of the driver and conductor along with licence details etc. Police can serve notice on the owner u/s 133 for required information in respect to offences cnnected with the violations of any provisions of the M.V.Act. In the event of cases registered u/s 279/304-A IPC, notice can be served for examination of persons during investigation. Sec.134Duty of driver in case of accident and injuryTo take all reasonable steps to secure medical attention for the injured personsTo give information to Police officer on demand To report the circumstances of the occurrence within twentyfour hours at the nearest police station. Expression Driver includes the owner of the vehicle. Sec.134(C)The driver/owner shall furnish the following information in writing to Insurance company: Policy details, Date of accident with time and place, Particulars of

deceased/ injured,Nameof driver and licence details. Accident is not defined in M.V.ActAccident ,ordinarily means an event which takes place without ones foresight or expectation( AIR 1928 Mad 364Nagaraja Moopnar V. Emperor). Persons accompanying the driver in the vehiclecannot be convicted u/s 134 read with sec.177 of M.V.Act. CHAPTER XLiability Without Fault in certain cases Provision u/s 140 is benevolent one and intended to offer prompt financial relief to the victim or the L.Rs. of the victim. Section does not contemplate filing of separate application. No obligation cast on the claimants to prove the fault of driver or owner Only ocurence of accident and death/injury in the accident is to be proved. Compensation is fixedRs.50,000/- for death and Rs.25,000/for permanent disability. Disposal of NFL application in shortest possible period. Furnishing of solvent security by owner in violation cases.

Filing of medical certificate issued by private doctor about leg fractureNo ground for rejection of NFL claimCourt need not go to further details while considering NFL application. Collision of motor vehicle with trainJurisdiction and powers of the Tribunal is not oustedUse of the motor vehicle that creates the cause of action for a claim u/s 140. Detailed enquiry not contemplatedPrima facie case required. REQUIRMENTS OF POLICIES AND LIMITS OF LIABILITY Motor insurance was made compulsory for the protection of innocent motor accident victims. Anyone and everyone other than the contracting parties are Third Parties. Intention and purpose of owner is to cover the risk which may arise in relation to claims lodged against him by a third party. SEC.147Requirments of policies and limits of liabilitySection 147 enjoins upon the insurer certain requirements in relation to the use of particular vehicle such as:

Policy must specify the person or persons insured with respect to their liability to third parties, extent of liability in TP property damage, Liability which may be incurred in respect of the death or injuries to any person. Owner of goods or his authorised representative carried in the vehicle are covered. STATUTARY DEFENCES OF COMPANY Section 149(2)Statutary Defences of company Breach of specified condition of policy, i.e., private vehicle used for hire, organised racing and speed testing ,Transport vehicle used against permit conditions, vehicle driven by person not duly licensed or disqualified from holding any license, Injury caused or contributed to by conditions of war, civil war, riot or civil commotion, policy obtained by non-disclosure of a material fact or by misrepresentation of fact. Material fact or material particular means, the fact or particular of such a nature as to influence the judgement of a prudent

insurer in determining whether he will take the risk--Sec.149 (6) Sec.149(5)Recovery from insured. Sec.148Reciprocating Country Sec.151Duty to give information as to insurance. Section 157Transfer of certificate of insuranceAutomatic transfer of policy along with transfer of vehicle. Fiction of section 157 is limited to third party risk onlyDamage caused to insured vehicleOD claimThere must be an agreement between insurer and transfereeTransfer endorsement to be issued if fact of transfer is is intimated to insurer by transferee. Deemed transfer of policy only in case of third party risk. Section 158(6)Statutory duty on the police investigating officer to submit a report(Form 54 as per rule 150 CMVR) to the

concerned Tribunal and Insurance company within thirty days of intimation of accident. Report can be treated as claim petition by tribunal. Pre Litigation investigationChecking of manipulation. Section 160- Duty of police officer and registering authority to furnish to the person who alleges that he is entitled to claim compensation all such particulars in such form and within such time as the central Government may prescribe. Section 161- Hit and run motor accidentIdentity of vehicle not known in spite of reasonable effortFixed sum of Rs.25,000/- for death and Rs.12,500/- for grievous hurt. Section 163- Scheme for payment of compensation under Hit and RunSolatium Fund established by Central Govt. Administered by GICEnquiry vested with District Collector. Section 163-A- Compensation on structured formula basis Negligence or default of driver or owner need not be proved by claimantsCompensation to be computed as per Second ScheduleLimited to those victims who had income up to

Rs,40,000/- per annum. APPLICATION FOR COMPENSATION Section 166 Application for compensation by injured, Legal representatives in case of death, owner of TP property, any agent duly authorised. L.R.s left over have to be added as respondents. Jurisdiction at four placesLimitation removed w.e.f.14.11.1994.

Statement for interim award u/s140 if no separate application filed Right vests in legal representatives and not in dependants alone. Remarriage by widow She is entitled till the date of remarriage. Priest leaving family and joined monasteryEntitlement of claim. Step-mother not entitled if not dependant. Joint application by children for the death of parents maintainable. Accident occurred in Nepalclaims lodged in Andhra Pradesh were held tenable where they were residing (2007 ACJ 2246APHCS.P.Raju V.T.Venkat Rao) METHOD OF COMPUTATI ON OF COMPENSA TION 29 STRUCTURED FORUMULA

30 NON-PECUNIARY COMPENSATION Amount of compensation shall not be less than Rs. 50,000/General Damages (in case of death): (i) Funeral Expense Rs. 2,000 (ii)Loss of Consortium Rs. 5,000 (iii) Loss of estate Rs. 2,500 (iv) Medical expense Actual expenditure subject to Rs.15000 max

General Damages (in case of injuries & disabilities): (i) Grievous injuries Rs. 5,000 (ii) Non-grievous injuries Rs. 1,000 (iv) Medical expense Actual expenditure subject to Rs.15000 max Further, loss of income, if any for actual period of disablement not exceeding 52 weeks. Notional Income for compensation to those who had no income prior to accident: (a) Non-earning persons Rs. 15,000/- p.a. (b) Spouse Rs. 1/3rd of income of he warning/surviving spouse 31

HOW TO COMPUTE COMPENSATION FOR ROAD TRAFFIC ACCIDENT VICTIMS If, the petition under section 166 MV Act,1988 is preferred the schedule-II was used as a guiding tool for determining compensation for road traffic compensation cases, wherein the negligence is established. Here the liability and monthly income was not restricted as detailed in Section 163-A, however the multiplier table of second schedule was utilized for the purpose of determining compensation and the general damages were also accorded. In General Manager, Kerala State Road Transport, Tiivandrum v. Susamma Thomas , AIR 1994 SC 1631 The multiplier method is the sound method of assessing compensation. The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. UPSRTC v. Trilok Chandra 1996 SCC(4) 362- The compensation to be awarded has two elements. One is the pecuniary loss to the estate of the deceased resulting from the accident, the other is the pecuniary loss sustained by the members of his family for his death. Unit method was followed and multiplier method not followed.

32 HOW TO COMPUTE COMPENSATION FOR ROAD TRAFFIC ACCIDENT VICTIMS Sarla Varma Vs. Delhi Transport Corporation , 2009 ACJ 1298 SC (i) Whether the future prospects can be taken into account for determining the income of the deceased ? If so, whether pay revisions that occurred during the pendency of the claim proceedings or appeals there from should be taken into account ? Future prospects to be added in case of permanent job i.e. 50% of actual salary if the deceased was below 40 years and 30% of actual salary if the deceased was 40 to 50 years. Revision after the death of the deceased not to be considered. (ii) Whether the deduction towards personal and living expenses of the deceased should be less than one-fourth (1/4th) as contended by the appellants, or should be one-third (1/3rd) as contended by the respondents ? The deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependant family members is 4 to 6, and one-fifth (1/5th) where the number of dependant family members exceed six. Where the deceased is a bachelor 50% to be deducted towards personal expenses. (iii)Whether the High Court erred in taking the multiplier as 13 ? Age Group Multiplier Age Group

Multiplier 15 to 20 18 46 to 50 13 21 to 25 18 51 to 55 11 26 to 30 17 56 to 60 9 31 to 35 16 61 to 65 7 36 to 40 15

66 to 70 5 41 to 45 14 Where the annual income of the deceased is in taxable range, the words actual salary should be raised as actual salary less tax 33 HOW TO COMPUTE COMPENSATION FOR ROAD TRAFFIC ACCIDENT VICTIMS Santosh Devi vs. National Insurance Co. Ltd., 2012(6)SCC421 Although, the wages/income of those employed in unorganized sectors has not registered a corresponding increase and has not kept pace with the increase in the salaries of the Government employees and those employed in private sectors but it cannot be denied that there has been incremental enhancement in the income of those who are self-employed and even those engaged on daily basis, monthly basis or even seasonal basis. We can take judicial notice of the fact that with a view to meet the challenges posed by high cost of living, the persons falling in the latter category periodically increase the cost of their labour. In this context, it may be useful to give an example of a tailor who earns his livelihood by stitching cloths. If the

cost of living increases and the prices of essentials go up, it is but natural for him to increase the cost of his labour. So will be the cases of ordinary skilled and unskilled labour, like, barber, blacksmith, cobbler, mason etc. Therefore, we do not think that while making the observations in the last three lines of paragraph 24 of Sarla Vermas judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is selfemployed or who is paid fixed wages. RATIO: It would be reasonable to say that a person who is self-employed or is engaged on fixed wages will also get 30 per cent increase in his total income over a period of time and if he / she becomes victim of accident then the same formula deserves to be applied for calculating the amount of compensation. 34 HOW TO COMPUTE COMPENSATION FOR ROAD TRAFFIC ACCIDENT VICTIMS Reshma Kumari & Ors. vs. Mandan Mohan & Anr. (3 Judge Bench) CIVIL APPEAL NO. 4646 OF 2009 DOJ: 02-Apr-2013 It approved the methods adopted in Sarla Verma Case. Rajesh & Ors. vs. Rajbir Singh & Ors. DOJ: 12-04-2013- CIVIL APPEAL NO.3860/2013 (3 Judge Bench) It approved the methods adopted in Santosh Devi Case.

Step-1: (Ascertaining multiplicand) Ascertain income of deceased (net of income tax) Deduct for personal & living expenses Balance constitutes multiplicand (annual contribution towards family) Step-2: (Ascertaining multiplier) Ascertain multiplier having regard to age (not the number of years he would have served or lived) 35 LATEST TREND TO ARRIVE AT COMPENSATION

(DEATH CASES) Step -3: (Actual calculation) Multiplicand X multiplier = Loss of dependency towards family Add conventional amount of Rs.5000-10000 as loss of estate + (if survived by wife) Rs.500010000 as loss of consortium. Funeral expenses, transportation of dead body[if incurred], medical exp. if any, may be added. No amount towards pain, suffering or hardship caused to legal heirs. Addition towards future prospect:

Where deceased had permanent job: Below 40 years: Addition of 50% of actual salary at the time of death towards future prospect. > 40 years to 50 years: Addition of 50% of actual salary at the time of death towards future prospect. > 50 years : No addition towards future prospect. Where deceased was self employed / was on fixed salary [without provision of annual increment]: Actual income at the time of death. 36 LATEST TREND TO ARRIVE AT COMPENSATION (DEATH CASES)

Deduction towards personal & living expenses: No evidence to be led to show actual expenses of deceased. When deceased is married: Deduction of rd when no of dependent family members 2 to 3. Deduction of th when no of dependent family members 4 to 6. Deduction of 1/5 th when number of dependent family members exceeds 6. 1. 2. 3.

1. 2. When deceased is bachelor: Deceased is survived by parents & siblings: Deduction of 50% Deceased is survived by widowed mother & large number of non-earning sisters& brothers: Deduction of rd towards personal exp. 37 INJURY CASES Practice: Disability certificate issued by Medical Board : Earning X %of disability. Evidence by doctor : same as above or as thought proper by Court. No such evidence : Lump sum depending on nature of Injury Medical expenses : Necessarily incurred unless reimbursed by some other authority. Raj Kumar vs. Ajay Kumar & Anr. Civil Appeal No. 8981 of 2010 (Arising out of SLP (C) No. 10383 of 2007) -The heads under which compensation is awarded in personal injury cases are the following: Pecuniary damages (Special Damages)

i. Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure. ii.Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising: (a) Loss of earning during the period of treatment; (b) Loss of future earnings on account of permanent disability. iii.Future medical expenses. Non-pecuniary damages (General Damages) iv.Damages for pain, suffering and trauma as a consequence of the injuries. v.Loss of amenities (and/or loss of prospects of marriage). vi.Loss of expectation of life (shortening of normal longevity). 38 ASCERTAINMENT OF DISABILITY Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. 1.The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability (this is also relevant for awarding compensation under the head of loss of

amenities of life). 2.The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. These are all means to ascertain the Functional disability, which is held relevant for computing compensation. HANDLING OF MACT CASES COMPETENT WITNESS AND RELEVANT DOCUMENTS Cheque dishonourUnderwriting officer with proof of serving cancellation notice False implicationPolice I.O. with Case diary at companys cost for cross examination

DisabilityPanel doctor to examine injured and give evidence before court Negligence in collision caseDriver, site plan, MVI Report ViolationDealing officer, complete policy with terms and conditions HIGH VALUE CLAIMS Estimated liability exceeding Rs.10 lakhs up to Rs.25 lakhs per caseAdvocate appointment by RO Estimated liability exceeding Rs. 25 lakhs per caseAdvocate appointment by HO Competent Advocate with good knowledge and commitment Senior Advocate from High Court panel for guidance Visit by dealing officer to watch court proceedings on date of hearing Written argument OCCURRENCE OF ACCIDENT AND INFORMATION TO POLICE

The accident arising out of use of motor vehicles on the public place is the triggering event for invoking third party liability under M.V. Act,1988 On the occurrence of accident, the role of state policing agency comes into picture. REPORTING TO POLICE Since there is likelihood that a cognizable offence is committed, therefore generally First Information Report is lodged in these cases. Even otherwise, the entry in General Diary is recorded. RELEVANT PROVISIONS OF CHAPTER XII SEC. 154 CrPC: INFORMATION IN COGNIZABLE CASES Information relating to commission of cognizable offence to OIC of PS. Signed by informant, entitled to a free copy. If refused, can be sent to SP

Informant may not have first-hand knowledge FIR not substantive piece of evidence COMMON CHARGES IN CHARGE-SHEET AGAINST THE DRIVER OF OFFENDING VEHICLE 279 IPC: RASH DRIVING OR RIDING ON A PUBLIC WAY Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. CLASSIFICATION OF OFFENCE PunishmentImprisonment for 6 months, or fine of 1,000 rupees, or both CognizableBailableTriable by any MagistrateNon-compoundable. 304A IPC CAUSING DEATH BY NEGLIGENCE Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. CLASSIFICATION OF OFFENCE

PunishmentImprisonment for 2 years, or fine, or bothCognizableBailable Triable by Magistrate of the first classNon-compoundable. COMMON CHARGES IN CHARGE-SHEET AGAINST THE DRIVER OF OFFENDING VEHICLE 337IPC. Causing hurt by act endangering life or personal safety of others Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both. CLASSIFICATION OF OFFENCE PunishmentImprisonment for 6 months, or fine of 500 rupees, or both Cognizable BailableTriable by any MagistrateCompoundable by the person to whom hurt is caused with the permission of the court. 338 IPC Causing grievous hurt by act endangering life or personal safety of others Whoever causes grievous hurt to any person to doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.

CLASSIFICATION OF OFFENCE PunishmentImprisonment for 2 years, or fine of 1,000 rupees, or both Cognizable BailableTriable by any MagistrateCompoundable by the person to whom hurt is caused with the permission of the court. COMMON CHARGES IN CHARGE-SHEET AGAINST THE DRIVER OF OFFENDING VEHICLE 427. Mischief causing damage to the amount of fifty rupees Whoever commits mischief and thereby causes loss or damage to the amount of fifty rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. CLASSIFICATION OF OFFENCE PunishmentImprisonment for 2 years, or fine, or bothNon-cognizable Bailable Triable by any MagistrateCompoundable by the person to whom the loss or damage is caused. 181-MV ACT. Driving vehicles in contravention of section 3 or section 4. Whoever drives a motor vehicle in contravention of section 3 or section 4 shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both. 183MV ACT- Driving at excessive speed, etc. (1) Whoever drives a motor vehicle in

contravention of the speed limits referred to in section 112 shall be punishable with fine which may extend to four hundred rupees, or, if having been previously convicted of an offence under this sub-section is again convicted of an offence under this subsection, with fine which may extend to one thousand rupees. COMMON CHARGES IN CHARGE-SHEET AGAINST THE DRIVER OF OFFENDING VEHICLE (2) Whoever causes any person who is employed by him or is subject to his control in driving to drive a motor vehicle in contravention of the speed limits referred to in section 112 shall be punishable with fine which may extend to three hundred rupees, or, if having been previously convicted of an offence under this sub-section, is again convicted of an offence under this subsection, with fine which may extend to five hundred rupees. (3) No person shall be convicted of an offence punishable under subsection (1) solely on the evidence of one witness to the effect that in the opinion of the witness such person was driving at a speed which was unlawful, unless that opinion is shown to be based on an estimate obtained by the use of some mechanical device. (4) The publication of a time table under which, or the giving of any direction that any journey or part of journey is to be completed within a specified time shall, if in the opinion of the Court it is not practicable in the circumstances of the case for that

journey or part of a journey to be completed in the specified time without contravening the speed limits referred to in section 112 be prima facie evidence that the person who published the time table or gave the direction has committed an offence punishable under sub-section (2). COMMON CHARGES IN CHARGE-SHEET AGAINST THE DRIVER OF OFFENDING VEHICLE 184. Driving dangerously Whoever drives a motor vehicle at a speed or in a manner which is dangerous to the public, having regard to all the circumstances of the case including the nature, condition and use of the place where the vehicle is driven and the amount of traffic which actually is at the time or which might reasonably be expected to be in the place, shall be punishable for the first offence with imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees, and for any second or subsequent offence with imprisonment for a term which may extend to two years, or with fine which may extend to two thousand rupees, or with both. 185. Driving by a drunken person or by a person under the influence of drugs. Whoever, while driving, or attempting to drive, a motor vehicle (a) has, in his blood, alcohol exceeding 30 mg. Per 100 ml. of blood detected in a test by

a breath analyser, or (b) is under the influence of a drug to such an extent as to be incapable of exercising proper control over the vehicle shall be punishable for the first offence with imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both; and for a second or subsequent offence, if committed within three years of the commission of the previous similar offence, with imprisonment for a term which may extend to two year, or with fine which may extend to three thousand rupees, or with both. COMMON CHARGES IN CHARGE-SHEET AGAINST THE DRIVER OF OFFENDING VEHICLE 187. Punishment for offence relating to accident. Whoever fails to comply with the provisions of clause (c) of sub-section (1) of section 132 or of section 133 or section 134 shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both or, if having been previously convicted of an offence under this section, he is again convicted of an offence under this section, with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. 192-A. Using vehicles without permit. (1) Whoever drives a motor vehicle or causes

or allow a motor vehicle to be used in contravention of the provisions of sub-section (1) of section 66 or in contravention of any condition of a permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, shall be punishable for the first offence with a fine which may extend to five thousand rupees but shall not be less than two thousand rupees and for any subsequent offence with imprisonment which may extend to one year but shall not be less than three months or with fine which may extend to ten thousand rupees but shall not be less than five thousand rupees or with both : Provided that the Court may for reasons to be recorded, impose a lesser punishment. COMMON CHARGES IN CHARGE-SHEET AGAINST THE DRIVER OF OFFENDING VEHICLE (2) Nothing in this section shall apply to the use of a motor vehicle in an emergency for the conveyance of persons suffering from sickness or injury or for the transport of materials for repair or for the transport of food or materials to relieve distress or of medical supplies for a like purpose : Provided that the person using the vehicle reports about the same to the Regional Transport Authority within seven days from the date of such use. (3) The Court to which an appeal lies from any conviction in respect of an offence of the

nature specified in sub-section (1), may set aside or vary any order, made by the Court below, notwithstanding that no appeal lies against the conviction in connection with which such order was made]. ROLE OF POLICE IN INVESTIGATION & CRIMINAL PROCEEDINGS ROLE OF POLICE IN INVESTIGATION & CRIMINAL PROCEEDINGS SEC. 156 CrPC- POLICE OFFICERS POWER TO INVESTIGATE COGNIZABLE CASE: Police Officer is empowered to investigate cognizable offence without order of Magistrate. SEC. 157 CrPC- PROCEDURE FOR INVESTIGATION: To visit spot (Under this process, the IO prepares site-sketch relevant for determining negligence) Investigate facts & circumstances

Take steps for discovery /seizure & (seizure list is prepared) To arrest the offender (generally the driver of the offending vehicle) SEC. 160 CrPC: Power to require the attendance of witnesses, acquainted with facts & circumstances. (witness below 15 yrs & women not to be summoned) SEC. 161 & 162 CrPC: INVESTIGATION PROCEDURE Witness is to answer truly other than those which implicates himself To be written by Police Officer; not to be signed by witness ROLE OF POLICE IN INVESTIGATION & CRIMINAL PROCEEDINGS SEC. 172 CrPC: DIARY OF PROCEEDINGS OF INVESTIGATION Contains day by day proceedings with time, place of visit, facts ascertained

during investigation. Generally known as Case-diary. SEC. 173 CrPC: POLICE REPORT ON COMPLETION OF INVESTIGATION Name of parties, nature of complaint, name of witnesses, if offence committed & by whom, whether accused arrested, forwarded or released on bail, etc. (Charge-sheet / Final Report) SEC. 174 CrPC: ENQUIRY & REPORT ON SUICIDE, ETC. Police to enquire & report on- also known as INQUEST REPORT Suicide Killed by animal Machinery Accident, etc. Body to be sent for Post- Mortem & opinion by Civil Surgeon RELEVANCE OF THE DOCUMENTS PROCURED 1. 2.

3. 4. 5. 6. 7. a. b. FIR Commission of motor vehicle accident, vehicle involved, rash & negligent driving, name of driver [if given], place, persons died / injured, etc. Seizure List: Vehicle number & description, registration particulars & owner, driving license particulars & name of driver, validity /authorization to drive class of vehicle, route permit & validity, insurance particulars. MVI Report: Spot map, vehicle particulars, probable cause of accident, presence /absence of rash /negligent driving on part of accused driver, whether any mechanical failure, damage to vehicle, etc. [technical opinion] Inquest Report: Position of dead body with surroundings, opinion of near ones

regarding cause of death, etc, duly witnessed. PM Report: Name/address of person dead, Age, injuries [external /internal], probable cause of death, probable time of death, etc. Injury Report /Wound certificate: Name & address of injured, details of injuries, cause & nature of injuries [simple / grievous], time of injuries. Copies of documents like Insurance Policy, Driving license, Permit, Fitness certificate Charge Sheet: Prima-facie, offence has been made out against the accused driver, with name & address, section of law, witnesses, documents seized, etc. Final Report : If no clue is available regarding involvement of vehicle & identity of driver LEADING EVIDENCE & PROVING DEFENSES LEADING EVIDENCE AND PROVING DEFENCES For proving the defense available under section 149(2) of the Motor Vehicles Act,1988 the evidences are to be lead before the learned MACT 59 . Pr

All facts, except the contents of documents may be oo proved by oral evidence. f be direct.(S.60) Oral evidence must of The contents of 61 fadocuments may be . ct proved either by Pr s EVIDENCE primary or oo by secondary f or

evidence. of al 62. co ev nt id 65. Cases in which en en secondary ts ce evidence relating to of documents may be given do

cu m LEADING EVIDENCE AND PROVING DEFENCES IMPORTANT PRINCIPLES OF EVIDENCE S.101. BURDEN OF PROOF Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that he burden of proof lies on that person. S.102. ON WHOM BURDEN OF PROOF LIES The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. 115. ESTOPPEL When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.

PROVISIONS RELATING TO EXAMINATION EXPLORING THE POSSIBILITIES OF EXPLORING THE POSSIBILITIES OF COMPROMISE THROUGH ADRs When the dealing officer is satisfied that no defense under section 149(2) Motor Vehicle Act, 1988 is available and the accident and involvement of insured vehicle is established and prima-facie negligence is proved, the most prudent way to move forward is to look for compromise settlement through various ADRs. Section 89 of Code of Civil Procedure provides that: Arbitration and conciliation provisions of Arbitration and Conciliation Act, 1996 Settlement through Lok Adalat as per Section 20 of Legal Services Authorities Act,1987. For mediation, the Court shall effect compromise settlement between the parties and shall follow such procedure as may be prescribed. Section 22-B of Legal Services Authorities Act, for settlement in Permanent Lok Adalat. Common Mechanism for Compromise Settlement Third Party Cases.

PROVISIONS RELATING TO ESCALATED CHALLENGE OF AWARD PROVISIONS RELATING TO ESCALATED CHALLENGE OF AWARD The interlocutory orders against no appeal, review or revision lies, if required to be challenged then the Constitutional remedy under Article 226/227 to be invoked. ARTICLE 226- POWER OF HIGH COURTS TO ISSUE CERTAIN WRITS ARTICLE 227-POWER OF SUPERINTENDENCE OVER ALL COURTS BY THE HIGH COURT Further once the right of statutory appeal under section 173 MV Act is exhausted, if the order requires further challenge, then the only remedy left is to invoke the extraordinary jurisdiction of Supreme Court by filing Special leave petition under Art. 136. ARTICLE 136 SPECIAL LEAVE TO APPEAL BY SUPREME COURT(1)Notwithstanding anything in this chapter, the Supreme Court may, in its discretion grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any Court or tribunal in the territory of India. (2) Nothing in Clause (1) shall apply to any judgment, determination, sentence or order passed or made by any Court or Tribunal constituted by or under any law relating to the Armed Forces.

THANK YOU 63

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