MACT CT AT AT J UD IAL A CADEM DEMY J HARK UDICIAL RKHAND HAND - - PowerPoint PPT Presentation

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STATE

TE LEV EVEL EL WOR ORKS KSHOP OP

ON ON

MACT CT

AT AT

JUD

UDICIAL IAL ACADEM DEMY JHARK RKHAND HAND

MACT CT : : An n Over ervi view

MOTOR

OR VEHICL ICLES ES ACCIDENTS DENTS IN IN 2017

(4,64,910 4,910 )

DEA

EATH TH

(1,4 ,47,913 7,913) INJ

NJURED ED

(4, 4,70,975 70,975)

Source: Road Accidents in India 2017, Ministry of Road Transport and Highways

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IMPAC

ACT OF OF MOTO TOR VEHICLE LE ACCIDENTS ENTS

• Road traffic injuries constitute the 8th

leading causes of death in India in 2016

• Leading cause of health loss among

young men of age 15-49 years.

• Fatal

road accident victims largely constitute young people in the productive age groups

Source: Road Accidents in India 2017, Ministry of Road Transport and Highways

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IMPAC

ACT OF OF MOTO TOR VEHICLE LE ACCIDENTS ENTS

• Young adults in the age group of 18 - 45 years

accounted for 72.1 per cent of victims during 2017

• People in working age group of 18 – 60 years

accounted for a share of 87.2 per cent in the total road accident fatalities

• The total number of males and females killed

during the calendar year 2017 were 1,27,787 (86.4%) and 20,047 (13.6%) respectively

Source: Road Accidents in India 2017, Ministry of Road Transport and Highways

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Source: Road Accidents in India 2017, Ministry of Road Transport and Highways

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Source: Road Accidents in India 2017, Ministry of Road Transport and Highways

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CHA

HALL LLENGE ENGES IN IN TH THE ADJUDICA UDICATION TION OF OF MOTO TOR

VEH

EHICLE CLE ACC CCIDE DENT NT CASES ES

• Only 10% cases reach MACT
• Cost to the State Judiciary and Insurance Sector

for adjudication

• Delay in Adjudication – Impact on the victim
• Lack of financial support during pendency to the

dependents or injured

• The

ultimate payout does not reach the recipients completely

(M.R. Krishna Murthi v. New India Assurance Co. Ltd. and Others, 2019 SCC OnLine SC 315)

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POSSIBILITIES

Practice in the UK:

• Only 1% cases reach the Courts for

compensation

• Normally, whenever there is an accident

the insurance company surveyor visits the place of occurrence, assesses the case and pays the claim

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PROVISION

VISIONS REL ELATED TED TO TO COMPENSA ENSATION TION

Before 2019 Amendment After 2019 Amendment Pre-trial Settlement under MCTAP Section 158 (6) – Information regarding accident by Police to Tribunal within 30 days Section 161 – Hit and Run cases

• In case of death – Rs.

25,000/-

• In case of grievous hurt –
• Rs. 12,500/-

No scheme for “Golden Hour”  No limitation period for presenting claim petition  No appeal if the disputed amount is less than Rs.10000 Statutory recognition for pre-trial settlement under Section 149 read with Section 164

• Proviso under Section 166 added –

Claim petition lapses if the settlement amount is accepted by the Claimant Section 159 – Information regarding accident by Police to Tribunal within 3 months Section 161 – Hit and Run cases

• In case of death – Rs. 2 lakhs
• In case of grievous hurt – Rs. 50,000

Section 162 – Scheme for “Golden Hour” Section 166 (3) – Limitation period for claim application – 6 months from the date of the accident Section 169 (4) – MACT shall have all the powers of an Executing Court under the CPC No appeal if the disputed amount is less than 1 lakh

MODIF

ODIFIED IED CLA LAIM IMS TRI RIBUNA BUNAL AGR GREED EED

PROC

ROCEDURE EDURE

• Vide Order dated 13.05.2016 and 06.11.2017

the Hon’ble Supreme Court adopted the Modified Claims Tribunal Agreed Procedure (MCTAP) formulated by the Delhi High Court in Rajesh Tyagi v. Jaibir Singh, 2018 SCC OnLine Del 13316

(Jaiprakash v. National Insurance Company Limited, (2010) 2 SCC 607)

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MODIF

ODIFIED IED CLA LAIM IMS TRI RIBUNA BUNAL AGR GREED EED

PROC

ROCEDURE EDURE

• Prescribes the role of the following

stakeholders

• A. Police
• B. Doctors
• C. MACT
• D. Legal Services Authority
• E. Insurance Companies

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POLICE

INVESTIGATION OF ROAD

ACCIDENT CASES

INTIMATION OF ACCIDENT TO

THE CLAIMS TRIBUNAL AND

INSURANCE COMPANY DOCUMENTS TO BE

COLLECTED

VERIFICATION OF THE DOCUMENTS IN CASE OF UN-INSURED

VEHICLE OR DRIVING WITHOUT LICENCE OR FAKE LICENCE, DRIVER AND OTHER PERSONS INVOLVED TO BE PROSECUTED

TO COMPLETE

INVESTIGATION WITHIN 30

30

DAYS AND TO FILE DAR

(DETAILED ACCIDENT REPORT) BEFORE THE CLAIMS TRIBUNAL TO PRODUCE THE

DRIVER(S), OWNER(S), CLAIMANT(S) AND EYE WITNESS(ES) BEFORE THE

CLAIMS TRIBUNAL COPY OF DAR TO BE

FURNISHED TO CLAIMANT(S), OWNER/DRIVER OF THE OFFENDING VEHICLE(S),

INSURANCE COMPANY

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• A. ROLE OF

OF TH THE POLICE

• 1. Investigation of road accident cases
• Inspect the site
• Take photographs

 Place of occurrence  Injured persons

• Prepare a site plan (to scale)
• Spot Enquiry

2. Intimation of accident to the Claims Tribunal and Insurance Company

• Within 48 hours

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• A. ROLE OF

OF TH THE POLICE

3. Documents to be collected

• FIR
• Site Plan
• Photographs and Specimen Signatures
• Driving

Licence, Registration Certificates, Insurance Policy of the offending vehicle

• Statement of the witnesses and report under

Section 173, CrPC

• In case of Death – Post-mortem Report, Death

Certificate, Identity Proof and Proof

• f

age,

• ccupation and income of the deceased and
• ther documents
• In case of injury – MLC (Injury Report), Identity

Proof, Disability Certificate and other documents

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• A. ROLE OF

OF TH THE POLICE

4. Verification of the documents

• By obtaining confirmation in

writing from the

• ffice
• r

authority or person purporting to have issued the same, or

• By such further investigation
• r

verification as may be deemed necessary

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• A. ROLE OF

OF TH THE POLICE

5. In case of un-insured vehicle or driving without licence or fake licence, driver and other persons involved to be prosecuted 6. To complete investigation within 30 30 days and to file DAR (Detailed Accidental Report) before the Claims Tribunal (Corr (Corresponding esponding Se Sect ction

• n 159

159 – 3 Month ths) s)

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• A. ROLE OF

OF TH THE POLICE

7. Copy

• f

DAR to be furnished to claimant(s),

• wner/driver
• f

the

• ffending

vehicle(s), Insurance Company

• Shall also furnish

a copy of Detailed Accident Report (DAR) along with complete documents to Secretary, Legal Services Authority

8. To produce the driver(s),

• wner(s),

claimant(s) and eye witness(es) before the Claims Tribunal

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• B. ROLE OF

OF DOCTO TORS

• To issue MLC (injury report) and/or Post-

mortem Report within 15 days of the accident to the Investigating Officer

• The doctor who treated or examined the

injured claimant and assessed the permanent disability can give evidence of his medical

• pinion

with regard to the extent

• f

permanent disability

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• C. ROLE

LE OF OF MOTO TOR ACC CCIDE DENTS NTS CLA LAIMS

TRIBUNAL

BUNAL/C

/COURT

OURTS

• 1. Regarding release of offending vehicle
• Vehicle not to be released if :
• not covered by the policy of insurance against third party risks,
• r
• the driver was not holding a valid driving licence, or
• if the registered owner fails to furnish copy of the insurance

policy or the driving licence of the driver,

• Unless the registered owner furnishes sufficient security to the

satisfaction of the Court to pay compensation that may be awarded in the claim case.

• On expiry of three months, such vehicle shall be sold off

in public auction by the Magistrate concerned and the proceeds thereof shall be deposited with the concerned Claims Tribunal within 15 days

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• 2. Extension of time to file DAR and Report

under Section 173, Cr.P.C.

• 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

• utside

the jurisdiction of the Court;

• where the driving licence is issued outside the

jurisdiction of the Court, or

• where the victim(s) has suffered grievous injuries

and is undergoing continuous treatment

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• 3. To pass necessary directions for
• btaining documents etc.
• On application of the IO in proper format, the

Tribunal may pass necessary directions

• 4. Examination of DAR by the Claims

Tribunal

• If the DAR is complete in all respects, the

Claims Tribunal shall fix a date for appearance of the driver(s), owner(s), claimant(s) and the eye witness(es) and the Investigating Officer shall produce them on the date so fixed.

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• 5. To treat DAR as a claim petition
• The Claims Tribunal to treat the DAR

as a claim petition and proceed further

• The

DAR may be registered as Miscellaneous Application and notices be issued to the claimants

• If the claimants have filed separate

claim petitions, the DAR to be tagged with it

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• 6. Direction to the claimant(s) to open

savings bank account in a nationalized bank

• No cheque book/debit card to be issued

to the claimant

• No joint accounts to be opened
• 7. In cases of charge of rash and

negligent driving, the Claims Tribunal shall register claim case under Section 166 of the MV Act, 1988

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• Corresponding Section 149 of the MV Act (as amended in

2019) read with Section 164

• If the compensation is accepted, the claim petition before

the Tribunal shall lapse (Proviso to Section 166 (1) )

• 8. Consent Award to be passed where

the Claimant accepts the Offer of the Insurance Company

• 9. No application for compensation

shall be entertained unless it is made within 6 months of the occurrence of the accident (Section 166 (3))

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– Functional Disability (Rekha Jain v. National Insurance Co.

• Ltd. and Others, (2013) 8 SCC 389)
• Even though the claimant does not suffer from 100% physical

permanent disability, he/she may suffer 100% functional disability

• The Tribunal and the courts while awarding compensation for

bodily injuries, must realise that the possession of one's own body is the first and most valuable of all human rights and that all other possessions and ownership are the extensions of the basic right. Bodily injuries should be equated with the deprivation which entitles a claimant to damages and the amount of damages varies in accordance with the gravity of injuries.

• The Motor Accidents Claims Tribunals and the appellate courts

should keep in view the rights of the claimants under the provisions of the Motor Vehicles Act to determine the compensation claims of the claimants by considering the facts

• f each case and the legal position laid down by the Supreme

Court on relevant aspects.

• 10. Assessment of functional disability
• f the claimant in Injury Cases

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• Ascertainment
• f

the effect

• f

the percentage of permanent disability on the actual earning capacity (percentage of loss

• f earning capacity) involves three steps:-

–The Tribunal has to first ascertain what activities the claimant could carry on in spite

• f the permanent disability and what he

could not do as a result of the permanent disability –The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age

• 10. Assessment of functional disability
• f the claimant in Injury Cases

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–The third step is to find out whether:

• The claimant is totally disabled from earning any

kind of livelihood, or

• Whether in spite of the permanent disability, the

claimant could still effectively carry

• n

the activities and functions, which he was earlier carrying on, or

• 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.

• 10. Assessment of functional disability
• f the claimant in Injury Cases

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• 11. To elicit the truth - examination of

the claimant(s) before passing of the award

• 12. In cases of non-settlement, enquire

and pass an award within 30 days

• The Claims Tribunal shall proceed to

conduct enquiry under Section 168 and 169 of the MV Act

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• 13. Pass orders for the deposit of the

award amount

• Specific direction (including manner of deposit)

for the deposit of the award amount within 30 days

• f the announcing of the award.
• Compliance report to be filed within 15 days
• 14. Disbursement of the Award Amount
• Through MACAD (Motor Accident Claims Tribunal

Annuity Deposit Scheme) as being currently implemented by 21 Banks

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• 15. Protection of the award amount
• Depending upon the financial status and need of

the claimant, release such amount as may be necessary and direct the remaining amount to be kept in fixed deposits in a phased manner

• 16. To send a certified copy of the

award passed by the Claims Tribunal to the concerned Magistrate and to the Legal Services Authority

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• D. R

. ROLE

OLE OF OF LEG EGAL AL SER ERVIC VICES ES AUTHORI HORITY TY

• 1. Copy of DAR to be maintained in the Legal Services

Authority for follow-up

• 2. To examine each case and assist the Claims Tribunal in

determination of the just compensation payable to the claimant(s) in accordance with law.

• 3. In the event of delay in passing of the award caused

due to delay or deficiency on the part of the Investigating Officer or the Designated Officer of the Insurance Company, the Legal Services Authority shall take up the matter with the Police and/or Insurance Company, as the case may be.

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• E. R
• E. ROLE

OLE OF OF INS NSURANCE RANCE COM OMPAN ANIES IES

• 1. To appoint a Designated Officer within 10 days
• f the receipt of the copy of DAR
• 2. To appoint a Nodal Officer and intimate the

Police.

• 3. To

get DAR verified by their Surveyor/Investigator

• 4. To process DAR and submit an offer for

settlement within 30 days

• 5. Deposit of the award amount within 30 days

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• E. ROLE

LE OF OF INS NSURAN ANCE CE COMPAN ANIES IES

• The Hindu, 12.11.2019 – “Woman’s legs crushed by truck, AIADMK flagpost to

blame”

• She applied the brakes after an iron flagpost erected on the side of Road tilted on

to the road. She lost control of the scooter and fell on the road. The lorry, which was behind her, ran over her legs and hit another two-wheeler.

• She was admitted to a nearby private hospital where a seven-hour-long surgery

was performed. We were told that the nerves of one leg had been badly severed in the accident. The other leg was completely fractured. She is the sole bread-winner

• f her family.
• Importance of “Golden Hour” – Section 162, after 2019 Amendment

provides for formulating a scheme for treatment during golden hour

• Need for immediate compensation for treatment and financial support
• Settlement of claims at pre-litigation stage – probing possibilities

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E.

• E. ROLE OF

OF INS NSUR URANC ANCE COMPANI ANIES ES

• Rarely any compensation is paid or claim is settled without

adjudication before MACT even when breach of condition is not a ground;

• People

generally prefer promptness

• ver

quantum

• f

compensation

• Breach of conditions by the insured:
• Section 150 of the MV Act (as amended in 2019)
• Pay and Recover (especially in serious cases)
• Recovery under Section 174 (National Insurance Co. Ltd. v. Swaran

Singh and Others, (2004) 3 SCC 297)

• Fresh suit for recovery not required; Executing Court has the

power to make such an order(National Insurance Co. Ltd. v. Challa Upendra Rao and Others, (2004) 8 SCC 517)

• After amendment – MACT – Executing Court – Under Section

169(4)

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VICTIMS

TIMS IN IN MOTO TOR ACCIDENTS ENTS

(Jai Prakash v. National Insurance Co. Ltd. )

Accidents involving Insured Vehicles Hit and Run accidents involving Vehicles which remain unidentified Accidents involving Vehicles which do not have any Insurance Cover Accidents involving Vehicles with Third-Party Insurance, carrying persons who are not covered by the Insurance. Eg :- Pillion Riders

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VICTIMS

TIMS INV NVOLVING VING INS NSURED URED VEH EHIC ICLES ES

Section 149 of the Motor Vehicles Act, 1988 (as amended by the 2019 Amendment Act) - Settlement by Insurance Company and Procedure therefor

• Receiving of information by the Insurance

Company

• Either from the Claimant
• Through Accident Information Report
• Section 159 of the MV Act (as amended in 2019)
• Or Otherwise

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VIC

ICTIMS TIMS INVOL VOLVING VING INSURED SURED VEH EHICLES ICLES

• The Insurance Company shall designate an

Officer to settle the claims

• The Settlement offer must be in compliance

with Section 164 of the MV Act (as amended in 2019) PROCEDURE The designated officer shall make an offer to the claimant for settlement before the Claims Tribunal within 30 days (Section 149)

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VIC

ICTIMS IMS INVOL VOLVIN VING INSUR SURED ED VEH EHIC ICLES LES

Settlement Offer Offer Accepted by the Claimant Offer Rejected by the Claimant Deemed to be settled by consent Payment by the Insurance Company within 30 days Date to be fixed for Adjudication by the Claims Tribunal Procedure under Section 166 to be followed

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HIT

IT AN AND RUN UN AC ACCIDENTS ENTS INV NVOLVI VING NG VEH EHICL CLES ES WHICH REM EMAI AIN UN UNIDENTIFI ENTIFIED ED

COMPENSATION (Section 161 – MV ACT – as amended in 2019) In case of Death In case of grievous hurt

• Rs. 2 Lakhs or higher

sum as prescribed by the Central Government (earlier – Rs. 25,000/-)

• Rs. 50 Thousand or

higher sum as prescribed by the Central Government

(earlier – Rs. 12,500/-)

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ACCIDEN

DENTS TS INVO VOLVIN VING UNINS NSURED URED VEHICLES LES

• MCTAP to be followed
• Vehicle not to be released if :
• not covered by the policy of insurance against

third party risks,

• Unless the registered owner furnishes sufficient

security to the satisfaction of the Court to pay compensation that may be awarded in the claim case.

• On expiry of three months, such vehicle shall be

sold

• ff

in public auction by the Magistrate concerned and the proceeds thereof shall be deposited with the concerned Claims Tribunal within 15 days for paying compensation that may have been awarded or may be awarded in a claim case

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ACC

CCIDENTS IDENTS INV NVOLVI VING NG INS NSURED ED VEH EHICL CLES ES,

, CA

CARRYIN YING

GRATUITOUS

TUITOUS PASS SSEN ENGERS GERS

• Tariff Advisory Committee (TAC) issued a circular dated

18.03.1978 to all the Insurance Companies to cover the

• ccupants in a private car under “comprehensive policy” w.e.f.

25.03.1977

• TAC directed all the Insurance Companies on 02.06.1986 to

cover pillion riders on a two-wheeler under “comprehensive policy”

• On 16.11.2009, the IRDA issued a circular to all the CEOs of all

the Insurance Companies reiterating the liability in respect of a pillion rider or occupants of a private car under “comprehensive policy”

* Yashpal Luthra v. United India Insurance Co. Ltd., (2011) ACJ 1415 Del as mentioned in Jagtar Singh v. Sanjeev Kumar, (2018) 15 SCC 189

• Section 147 (1) (b) (ii) – Gratuitous Passengers of a Goods

vehicle will not be covered under the policy

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ASSES

ESSMEN SMENT OF OF COMPENSA ENSATION TION IN IN CAS ASES ES OF OF DEA EATH TH

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FAC

ACTS TS TO TO BE BE ESTAB ABLISH ISHED ED BY BY TH THE CLAI AIMANT MANT

• Age of the Deceased
• Income of the Deceased
• Number of Dependants

ISSUES

UES TO TO BE BE DET ETER ERMINED MINED BY BY TH THE TRIBUNAL UNAL

• 1. Additions or Deductions to be made for

arriving at the Income of the deceased

• Actual Salary after deducting tax (National

Insurance Company Limited v. Pranay Sethi, (2017) 16 SCC 680)

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*Sarla Verma v. DTC, (2009) 6 SCC 121

2. Deductions to be made towards the personal living expenses of the Deceased

Deductions Conditions

½

Bachelor 1/3 Bachelor having large no. of dependants 1/3 Deceased was married having family

• f 2-3 members

¼

Family of 4-6 members 1/5 Family exceeding 6 members

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Age of the Deceased (in years) Multiplier Scale Upto 15

• 15-20

18 21-25 18 26-30 17 31-35 16 36-40 15 41-45 14 46-50 13 51-55 11 56-60 9 61-65 7 Above 65 5

• 3. The multiplier to be applied with reference to the age
• f the deceased (Sarla Verma v. DTC, (2009) 6 SCC 121)

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4. Future Prospects 5. Additions on Conventional Heads

• Loss of Estate

– Rs.15,000/-

• Loss of Consortium

– Rs. 40,000/-

• Funeral expenses

– Rs. 15,000/-

• 10% increase in every 3 years

(National Insurance Company Limited v. Pranay Sethi, (2017) 16 SCC 680) 6. Interest from the date of Application – In this case it was assessed at the Rate –7.5%(Dharampal and Sons v. UP State Road Transport Corporation, (2008) 12 SCC 208)

Age Group (in years) If in Permanent Employment Self-Employed Less than 40 50% 40% 40-50 30% 25% 50-60 15% 10%

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DETERMI

TERMINATIO TION OF OF COMPENSA PENSATION TION PAYAB ABLE LE TO TO

DEPENDANTS

PENDANTS OF OF A HOUS USEWIFE EWIFE

• Unfair, unjust and inappropriate to compute the

compensation payable to the dependants of a deceased housewife by comparing her services to that of a housekeeper or a servant

• Arun Kumar Agrawal and Another v. National

Insurance Co. Ltd. (2010) 9 SCC 218 – Criteria specified in Clause 6 of the Second Schedule to be followed and appropriate multiplier to be applied

• Jitendra Khimshankar Trivedi v. Kasam Daud

Kumbhar, (2015) 4 SCC 237 – Income of housewife assessed as Rs. 3000/- per month

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DETERMI

TERMINATIO TION OF OF COMPENSA PENSATION TION PAYAB ABLE LE IN IN CA CASES OF OF

DISABILI

SABILITY TY

• Efforts to be made to award adequate compensation not
• nly for the physical injury and treatment but also for the

pain, suffering and trauma caused, loss of earning and inability to lead and enjoy life normally

• Jagdish v. Mohan and Others (2018) 4 SCC 571 – Aspects

to be covered in cases of permanent or temporary disability:-

• Pain, suffering and trauma resulting from the accident
• Loss of income including future income
• The inability of the victim to lead a normal life together

with its amenities

• Medical expenses including future expenses
• Loss of expectation of life

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POINTS

INTS TO TO REMEMBER EMBER

The MV Act is not only a penal statute but is also a beneficial legislation and all the stakeholders must work together in coherence to fructify the objects of the Act Motor Vehicle Accident cases are different from the normal Civil Disputes or Criminal cases and require sensitization of all the stakeholders  Compensation is essential for providing financial support to and for the rehabilitation of the victim or the dependants of the victim.

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