• Compensation in motor accidents

A school bus hit a motorist and motorist died. Driver proved innocent and set free by court. , Bus has got insurance papers, but insurance company disowned the insurance coverage and says that they are not able to trace this policy and they have not issued a policy for that bus. Victims family argues that the insurance policy is fake and fabricated. In this case what would be the maximum amount of compensation payable and who will have to pay? Compensation sought by the victim's family is 7.5 lakhs.
Asked 4 years ago in Criminal Law
Religion: Hindu

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16 Answers

Hi, in case if the bus was not insured properly, the owner of the bus will be liable to pay the compensation

Hemant Chaudhary
Advocate, Gurgaon
4619 Answers
67 Consultations

4.9 on 5.0

If there is no insurance or if the insurance policy is lapsed or not in force, then the owner iopf the vehicle is liable to pay the compensation.

Your advocate who may be into MACT cases alone, would be knowing this rule, what is his opinion on this.

The court may be approached for claim against the vehicle owner.

T Kalaiselvan
Advocate, Vellore
78089 Answers
1543 Consultations

5.0 on 5.0

This the responsibility of the owner to pay the compensation as allowed by the court in absence of the insurance. The owner must submit the claim to the insurance as awarded or should pay from his own pocket.

The insurance is taken by the owner of the vehicle for his financial security in time of any claim due to the property insured.

The quantum of claim is always awarded by the court and that is not limited to the amount of Insurance of Rs 7.50 Lacs

Vimlesh Prasad Mishra
Advocate, Lucknow
6848 Answers
23 Consultations

4.9 on 5.0

The court may order the owner of the vehicle to pay compensation to the heirs of the deceased victim if there is no insurance in force.

The question is not about the innocence of the accused or his acquittal.

T Kalaiselvan
Advocate, Vellore
78089 Answers
1543 Consultations

5.0 on 5.0

There is a remedy, it is not just Rs.50,000/-. The insurance company cannot take such defence to escape from their liability.

The Oriental Insurance Company ... vs Sabita Kumari & Ors on 18 March, 2015 refers to supreme court judgments on such cases.

Therefore, advise your lawyer to cite this judgment so that the deceased's family get substantial compensation.

Highlights:-

17. The Hon'ble Supreme Court in the case of Prem Kumari and others Vs. Prahlad Dev and others,

(2008) 3 Supreme Court Cases 193 has held that even in the case that licence was fake, the

insurance company would continue to remain liable unless it proves that the owner was aware or noticed that the licence was fake and still permitted him to drive. The concept of purposive interpretation has no application to cases relatable to Section 149 of the Act. Here, it has been proved beyond doubt that the owner, who was himself a driver, had no licence but still he himself was driving the vehicle. The Supreme Court in the above case directed the insurance company to recover the said amount from the owner of the vehicle in the same manner as directed in the case of Nanjappan case, (2004) 13 Supreme Court

Cases 244.

IMPORTANT POINT APPLICABLE TO YOUR CASE:

17. It appears that the Tribunal in that case held that the insurer was not liable as the driver had a fake licence. The Hon'ble Supreme Court relying upon the case of National Insurance Co. Ltd. Vs. Swaran Singh directed the insurance company to recover the same from the owner.

Rajaganapathy Ganesan
Advocate, Chennai
2085 Answers
8 Consultations

4.9 on 5.0

THE MOTOR VEHICLES ACT, 1988

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.

PROPOSED AMENDMENTS IN MOTOR VEHICLES ACT BY CENTRE

Soon, traffic rule violators will have to cough up hefty penalties – almost 10 times more than what they pay now – for offences such as over speeding and drunk driving. The Centre has proposed Motor Vehicle Amendment Bill, the legislation that regulates road transport in the country. The Motor Vehicles Act was amended last in the year 2001. The bill, drafted by the Road Transport Ministry, has made penalties for traffic offences much more stringent.

Rash driving for example is now likely to attract a civil liability of upto Rs 5,000 in addition to punishment under the Indian Penal Code. Drunk driving will attract a penalty of Rs 5,000 and a two-year jail term.

For the first time, a concept of graded fines for drunk driving is likely to be introduced. This means that penalty will be directly proportional to the alcohol content found above the stipulated limit of upto 30 mg per 100 ml of blood in the driver’s body.

Jumping red light for the first time can cost the offender Rs.500. The fine will be Rs.1000 for the second time and if repeated again it will go upto Rs.1500.

Offences like drink driving can put the offender behind bars for at least two years with Rs.5000 as fine.

The penalty for crossing speed limit will range between Rs.1000-Rs.1500

Ganesh Kadam
Advocate, Pune
12335 Answers
191 Consultations

4.9 on 5.0

If the guilt of driver is not proved then the claimant may not be allowed any relief but the insurance for the self through bike insurance may be claimed from the bike insurance co. in any case.

Vimlesh Prasad Mishra
Advocate, Lucknow
6848 Answers
23 Consultations

4.9 on 5.0

I read somewhere that if the drivers guilty is not proved, the compensation to the victim is limited to Rs. 50,000/- does that hold good in this case?

This does not hold good in your case, and the compensation will not be limited to Rs. 50,000/-

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

The insurance company will have to pay the same, if one is holding the genuine and original insurance policy then the insurance company is liable to pay the compensation amount.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

If the bus was insured, the insurer will have to bear the compensation.

In case not, the owner of the bus is liable to make this payment.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

Respected sir...

There are two circumstances in 1- the insurance company who insured the vehicle will pay the compensation to the dessesed and they will have to pay the amount which is decided by court ...In second type of circumstances if the vehicle is not insured by any of the insurance company then the owner of vehicle will have to pay the compensation .....

Don't worry you will get the ammount which is determined by the court..

Thank you

Dinesh Sharawat
Advocate, Delhi
1258 Answers
12 Consultations

4.9 on 5.0

If the insurance paper of the said bus is fake and fabricated , then the Insurance company will never consider it for paying the claim. Hence the Owner of the vehicle will be responsible for the payment of the claim as per law.

The quantum of claim is always awarded by the Court and that is depend upon the age and ability/standard of the dead person supported with his family members and further this amount will be calculated. There may be possibility to get the amount of Rs 7.50 Lacs.

Mohammed Shahzad
Advocate, Delhi
9895 Answers
121 Consultations

5.0 on 5.0

The liability of the claim lies on driver and insurance company. Whether aquitted or convicted. If the policy is not provedy, whole of the liability will shift on the driver and owner and claim will be settled as formula set out in MV Act.

Parkash Chand Bhardwaj
Advocate, Hamirpur
120 Answers

4.8 on 5.0

first of all if driver is not guilty then why the bus company will pay the compensation ? what for ? this should be your argument. if the court is not listening then ask for a compromise with the other party. then negotiate and try to minimize compensation.

Arnab Kumar Banerjee
Advocate, Kolkata
112 Answers

4.0 on 5.0

Generally insurance company pays the same. But if the policy is fake and same is proved in court then insurance company will deny the claim.

Prashant Nayak
Advocate, Mumbai
27261 Answers
88 Consultations

4.4 on 5.0

Yes this is held proved in this case also.

Better you make a complaint against the school authorities for having a fake insurance for their bus.

School is also somewhere liable to pay compensation.

Thank You

Rahul Jatain
Advocate, Rohtak
5365 Answers
4 Consultations

4.8 on 5.0

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