• Claim due to accident

Dear Sir/Mam,

I had a car on my name which my brother was driving without renewing insurance unfortunately it mate with an accident and on of his friend got dead on the spot. Now the victims file planning to file a case for claim. I don't stay in India and working in Bahrain. I purchased the car for my personal use only and not permitted my brother to take it out. Although the insurance was expired I had plan that when I will come to India that time I will renew that's why the car was parked at my home town. Apriciate your expert advice for legal proceedings
Asked 2 years ago in Criminal Law from Bahrain
1. As regard you are concerned, nothing will happen to you since you can prove that you did not drive the car and was out of the Country,

2. As regard your brother is concerned, has any FIR been lodged against him?  If yes, then he shall have to contest the case on merit. What charge has been brought against him is important to further advice,

3. If he has not been charged with any offence by the police, then private complaint against him will not have much effect against him. What is the claim in the private case to be filed by one of the victim is required to be seen to further advise in this regard.
Krishna Kishore Ganguly
Advocate, Kolkata
12077 Answers
228 Consultations
5.0 on 5.0
If the vehicle is not insured any legal liability arising on account of third party risk will have to be borne by the owner of the vehicle. The owner is liable for the wrongs committed by his servants only if there was consent/ permission from the master to the servant. If the owner is able to prove successfully (which is most unlikely), the owner will not be liable to pay compensation and consequently insurance company will not be liable as the insured / owner. In case of an accident both the owner and the driver are to be impleaded as parties. In such cases the liability of the driver is only a vicarious in nature while the owner has an absolute liability.

The criminal case will attract Section 304 A of the Indian Penal Code which provides for offences relating to death due to negligence. 

Contrary 
It has to be proved in case of accident that the accident was the result of rash and negligent driving. Thus the prosecution has to be proving that the person who committed the accident was driving rashly and negligently and only then the offence is proved.
Ajay N S
Advocate, Ernakulam
1910 Answers
19 Consultations
5.0 on 5.0
1. Since the registration certificate of the car is in your name you alone will be liable under the law to pay compensation to the heirs of the deceased person. Your brother can be made liable only under the criminal law.

2. That your brother drove your car without your consent is not a defence which you can plead in the event that you are sued for compensation by the heirs of the deceased.

3. If no FIR has been lodged even after 9 months from the date of accident then your brother has nothing to worry about. However, the case for compensation, which is a substantive proceeding, can be filed against you even now.

4. You can contest the claim petition of the heirs of the deceased on the ground that the accident was not attributable to any negligence.

5. In view of the fact that the car was uninsured as on the date of the accident you will have to pay compensation (if ordered by the court) from your own pocket.
Ashish Davessar
Advocate, Jaipur
18061 Answers
447 Consultations
5.0 on 5.0
1. The fact that no FIR has been filed even after 9 months by the police does not abrogate or emasculate the right of the heirs of the deceased person to file a case for compensation against you.

2. If police does not file the FIR the affected person has the right to initiate proceedings under the criminal law directly before the court by leading preliminary evidence, which the heirs of the deceased person can do. However, as I mentioned earlier the absence of FIR does not curtail the right of the legal heirs of the deceased person to file a claim petition for compensation.

3. As regards the amount of compensation, it is the prerogative of the court. Factors such as the age of the deceased person, his dependants, the loss of income, etc will enter the area of consideration while deciding the quantum of compensation. In some cases the courts have awarded compensation in crores whereas in some it was in lakhs. So it all depends on the peculiar facts and circumstances of the case.
Ashish Davessar
Advocate, Jaipur
18061 Answers
447 Consultations
5.0 on 5.0
1. As I understand there has been no report of any rash or negligent driving of your car by your brother,

2. Only problem with you is that the insurance of the car had expired,

3. You have to pay the compensation for the said death if ordered by the Court in the worst case,

4. You have strong points to argue against the said claim i.e. the insurance had recently expired which could not be renewed by you since you could not return from abroad. Moreover, all those sitting in the car, including the deceased person, went out with the car knowingly that the insurance pertaining to your car has expired for which non of then deserve any compensation,

5. Engage a local lawyer having expertise in this field.
Krishna Kishore Ganguly
Advocate, Kolkata
12077 Answers
228 Consultations
5.0 on 5.0

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