$-2 & 3 * IN THE HIGH COURT OF DELHI AT NEW DELHI + FAO No.842/2009 % Date of decision: 07th November, 2014 RAJESH TYAGI & ORS. Appellants Through: Nemo. versus RAMESH CHANDRA GUPTA & ANR. Respondents Through: Ms. Lakshita Sethi for Mr. Anup. J. Bhambhani, Amicus Curiae Mr. Sanjay Jain, ASG with Mr. Kirtiman Singh, CGSC, Mr. Ali Noor and Ms. Astha Jain, Advocate for UOI AND MAC. APP. No.422/2009 SOBAT SINGH Appellants Through: Ms. Sandhya Singh, Advocate for Mr. Kishan Nautiyal, Advocate versus RAMESH CHANDRA GUPTA & ANR. Respondents Through: Mr. Kanwal Chaudhary, Advocate for Insurance Company Mr. O.P. Maini, Amicus Curiae Mr. Sanjay Jain, ASG with Mr. Kirtiman Singh, CGSC, Mr. Noor Anand and Ms. Astha Jain, Advocate for UOI FAO 82/2003 & MAC. APP. No.422/2009 Page 1 of 101 CORAM: HON'BLE MR. JUSTICE J.R. MIDHA J.R. MIDHA, J. (Oral)
1. India has dubious distinction of having worst record of road accidents. According to the latest Road Transport Ministry report, a total of 4,90,383 road accidents were reported in 2012 resulting in 1,38,258 deaths i.e. an average of one road accident every minute resulting in one death every 3.8 minutes which is highest in the world. Road accidents are a human tragedy which involves high human suffering and they impose huge socio-economic costs in terms of untimely deaths, injuries and loss of potential income. The ramifications of road accidents can be colossal and its negative impact is felt not only on individuals and their families but also on the economy. According to the report of World Health Organization, the road accidents constitute highest cause of death in the age group of 15 to 29 and third highest in the age group of 30 to 42. Consequently, road safety is an important issue of national concern.
2. The victims of the road accident are doubly unfortunate, first in getting involved in an accident and second, in not getting compensation. In developed countries, insurance companies, immediately, upon being notified of the accident, make their inquiries, voluntarily assess and pay the compensation to the victim. The matters go to the Court only where the insurance company denies the claim or where the victim is not satisfied with the quantum of compensation paid.
3. The Insurance Companies in our country are aware of this procedure and they actually implement the same in all cases of loss/damage other than the cases of injury/death in road accident cases. If a car is damaged in an accident, the Insurance Company immediately appoints a surveyor who inspects the vehicle on the same day, takes the photographs, the estimates the loss and give instructions to the workshop for repair of the vehicle within 24 hours. The payment of the expenses on the repair of the vehicle is paid directly to the workshop.
4. In case of death of victims of road accident, the principles of calculation of compensation are well settled. The age, income of the victim and the number of dependants of the deceased victim have to be verified to compute the compensation. These three things can be easily ascertained upon visit to the house of the deceased victim immediately after the accident. At the time of grief, there would not be any possibility of manipulation/exaggeration and the compensation on that basis could be tendered to the family of the deceased victim. In the case of injury, the visit to the hospital and statement of the Medical Superintendent can give a very clear estimate of the expenditure likely to be incurred on the treatment which can be tendered to the victim immediately. However, the helpless victims are compelled to approach the Motor Accident Claims Tribunal, where the cases proceed like normal civil suits and it takes years to adjudicate the matter.
5. In Rajesh Tyagi v. Jaibir Singh, IV (2010) ACC 847, this Court, vide order dated 5th November, 2009, appointed a Committee comprising of Secretaries of the Ministries of Road Transport and Highways; Finance (Department of Insurance); Law & Justice and Company Affairs; and Joint Commissioner of Delhi Police to evolve a mechanism for time-bound settlement of motor accident claims within 90 to 120 days. The said Committee consulted all the seventeen Insurance Companies and submitted a report whereupon this Court formulated a "Claims Tribunal Agreed Procedure" which came into force in National Capital Territory of Delhi with effect from 2nd April, 2010.
6. The 'Claims Tribunal Agreed Procedure' provides: first, the police to carry out complete investigation within 30 days and submit a Detailed Accident Report (DAR) to the Motor Accident Claims Tribunal; second, the Insurance company to compute the compensation within 30 days thereafter and inform the Tribunal; third, if the amount offered is fair and acceptable to the claimant, it shall be paid within 30 days; and fourth, if the offer is not acceptable or the Tribunal finds it not fair, the Tribunal shall pass an award within 30 days, meaning thereby that the claimants shall get the award amount within 90 to 120 days of the accident.
Salient Features of the Claims Tribunal Agreed Procedure
7. The salient features of the Claims Tribunal Agreed Procedure formulated vide order dated 21stDecember, 2009 in Rajesh Tyagi v. Jaibir Singh, IV (2010) ACC 859 are as under:
7.1 Investigation of road accident cases by the police Immediately on receipt of the information of a road accident, the Investigating Officer of Police shall inspect the site of accident, take photographs of the site of the accident from all angles and prepare a site plan, drawn to scale, as to indicate the lay-out and width, etc., of the road(s) or place, as the case may be, the position of vehicle(s), or person(s) involved, and such other facts as may be relevant so as to preserve the evidence in this regard. The Investigating Officer shall conduct spot enquiry by examining the eye-witnesses/bystanders.
7.2 Intimation of accident shall be given to the Claims Tribunal and Insurance Company within 48 hours The Investigating Officer shall intimate the factum of the accident to the Claims Tribunal within 48 hours of the accident. If the particulars of insurance are available, the intimation of the accident shall also be given to the concerned Insurance Company of the offending vehicle. The particulars of the accident shall also be uploaded on the website of Delhi Police. 7.3 Information/documents to be collected by the Investigating Officer The Investigating Officer shall gather the following particulars and documents:-
(i) Date, time and place of the accident.
(ii) Particulars of the persons injured or deceased in the accident.
(iii) Names and address of the driver of the offending vehicle.
(iv) Driving license of the driver of the offending vehicle.
(v) Names and address of the owner of the offending vehicle.
(vi) Certificate of registration of the offending vehicle.
(vii) Insurance Policy/Cover note/Certificate of insurance of the offending vehicle.
(viii) Fitness certificate and the permit (in the case of a commercial vehicle).
(ix) Names and addresses of the witnesses of the accident.
(x) Circumstances of the occurrence of the accident.
(xi) In case of death: (a) Proof of age of the deceased. (b) Death certificate. (c) Post mortem report. (d) Proof of income of the deceased. (e) Details of the dependents, i.e. their age, occupation and marital status. (f) Expenditure on treatment. (xii) In case of an injury: (a) Medico Legal Certificate (MLC). (b) Proof of age of the injured. (c) Proof of income of the injured. (d) Nature of injuries suffered. (e) Treatment taken by the injured including the discharge summary. (f) Disability certificate. (g) Expenditure on treatment. (h) Proof of absence from work [where loss of income
on account of injury is being claimed] such as certificate from the employer and extracts from the attendance register or log record or like records.
7.4 Verification of the documents by the Investigating Officer The Investigating Officer shall verify the authenticity of the documents mentioned above by obtaining confirmation in writing from the office or authority or person purporting to have issued the same or by such further investigation or verification as may be necessary for arriving at a conclusion of authenticity of the documents in question, including but not limited to verifying the license of the driver and permit of the vehicle, where applicable, from the registering authority.
7.5 Duty of the registration authorities to verify the documents within 15 days of the application The Registration authorities shall verify the registration certificate, driving licence, fitness and permit in respect of the offending vehicle within 15 days of the application being made by the Investigating Officer.
7.6 Duty of the hospital to issue MLC and Post-mortem Report within 15 days of the accident The concerned hospital shall issue the MLC and Post-Mortem Report to the Investigating Officer within 15 days of the accident.
7.7 Duty of the police to complete the investigation of the criminal case and file the chargesheet (Report under Section 173 Cr.P.C.) before the Metropolitan Magistrate and to file DAR along with copy of the chargesheet before the Claims Tribunal within 30 days The Investigating Officer shall complete the collection of the aforesaid documents and its verification as well as investigation of the criminal case within 30 days of the accident. The Investigating Officer shall file the report under Section 173 Cr.P.C. before the concerned Magistrate and Detailed Accidental Report (DAR) before the Claims Tribunal within 30 days of the accident. The DAR shall be accompanied by requisite documents which shall include copy of the report under Section 173 Cr.P.C, FIR, MLC, Post-Mortem Report (in case of death), photographs, site plan, mechanical inspection report, seizure memos and documents mentioned in the DAR as also a report regarding confirmation of authenticity thereof otherwise action taken. Copy of the DAR shall simultaneously be furnished to the Insurance Company, victims/claimants of the accident and owner/driver of the offending vehicle.
7.8 Extension of time to file DAR Where the Investigating Officer is unable to complete the investigation of the case within 30 days for reasons beyond his control, such as cases of hit and run accidents; cases where the parties reside outside the jurisdiction of the Court; where the driving licence is issued outside the jurisdiction of the Court, or where the victim has suffered grievous injuries and is undergoing treatment, the Investigating Officer shall approach the Claims Tribunal for extension of time whereupon the Claims Tribunal shall extend the time as it considers appropriate in the facts of each case. 7.9 Duty of the Investigating Officer to produce the driver, owner, claimant and eye witnesses before the Claims Tribunal along with the DAR The Investigating Officer shall produce the driver, owner, claimant and eye-witnesses before the Claims Tribunal along with the DAR. However, if the Police is unable to produce the owner, driver, clamant and eye-witnesses before the Claims Tribunal on the first date of hearing for reasons beyond its control, the Claims Tribunal shall issue notice to them to be served through the Investigating Officer for a date for appearance not later than 30 days. The Investigating Officer shall give an advance notice to the concerned Insurance Company about the date of filing of the DAR before the Claims Tribunal so that the nominated counsel for the Insurance Company can remain present on the first date of hearing before the Claims Tribunal.
7.10 Examination of DAR by the Claims Tribunal The Claims Tribunal shall examine whether the DAR is complete in all respects and shall pass an appropriate order in this regard. If the DAR is not complete, the Claims Tribunal shall direct the Investigating Officer to complete the same and shall fix a date for the said completion.
7.11 Claims Tribunal shall treat DAR as a claim petition for compensation The Claims Tribunal shall treat the DAR filed by the Investigating Officer as a claim petition under Section 166(4) of the Motor Vehicles Act. However, where the Police is unable to produce the claimants on the first date of hearing, the Claims Tribunal shall initially register the DAR as a Miscellaneous Application which shall be registered as a claim petition after the appearance of the claimants.
7.12 In cases of charge of rash and negligent driving or causing of hurt or grievous hurt the claims tribunal shall register the case under Section 166 of Motor Vehicles Act Where the Claims Tribunal finds that the DAR and in particular the report under Section 173, Cr.P.C., annexed to such DAR has brought a charge of rash and negligent driving, or the causing of hurt or grievous hurt the Claims Tribunal shall register the claim case under Section 166 of the Motor Vehicles Act, 1988. In cases where the DAR does not bring a charge of negligence or despite the charge of negligence the Claimant(s) before the Court chose to claim on a No-fault basis, the Claims Tribunal shall register a claim case under Section 163A of the Motor Vehicles Act, 1988.
7.13 Duty of the Insurance Company to appoint a Designated Officer to process the claim of the victims within 10 days of the receipt of the copy of DAR Upon receipt of copy of the DAR, the Insurance Company shall appoint a Designated Officer within 10 days. The Designated Officer shall be responsible for dealing / processing of that case and to pass a reasoned decision in writing about the amount payable to the claimants in accordance with law.
7.14 Duty of Insurance Company to process DAR and submit an offer for settlement within 30 days The Claims Tribunal shall grant 30 days time to the Insurance Company to examine the DAR and to take a decision as to the quantum of compensation payable to the claimants in accordance with law. The decision shall be taken by the Designated Officer of the Insurance Company in writing and it shall be a reasoned decision. The Designated Officer of the Insurance Company shall place the written reasoned decision before the Claims Tribunal within 30 days of the date of receipt of the copy of DAR from the Investigating Officer.
7.15 Consent award to be passed where claimant accepts the offer of Insurance Company The compensation assessed by the Designated Officer of the Insurance Company shall constitute a legal offer to the claimants and if the said amount is fair and acceptable to the claimants, the Claims Tribunal shall pass a consent award and shall provide 30 days time to the Insurance Company to make the payment of the award amount. However, before passing the consent award, the Claims Tribunal shall ensure that the claimants are awarded just compensation in accordance with law. The Claims Tribunal shall also pass an order with respect to the shares of the claimants and the mode of disbursement.
7.16 Claimants to respond to the offer of the Insurance Company within 30 days If the claimants are not in a position to immediately respond to the offer of the Insurance Company, the Claims Tribunal shall grant them time not later than 30 days to respond to the said offer.
7.17 In case of non-settlement, the Claims Tribunal to conduct an enquiry and pass an award within 30 days If the offer of the Insurance Company is not fair and acceptable to the claimants or if the Insurance Company has any defence available to it under law, the Claims Tribunal shall proceed to conduct an inquiry and shall pass an award within a period of 30 days thereafter.
7.18 In case of un-insured vehicle, driver and owner of the offending vehicle to be prosecuted under Section 196 of Motor Vehicles Act, In case of un-insured offending vehicle, the Investigating Officer shall prosecute the owner and driver of the offending vehicle under Section 196 of the Motor Vehicles Act.
7.19 In case of fake driving licence, the driver and other persons involved to be prosecuted for holding a fake driving licence If the driving licence of the driver is found to be fake, the Investigating Officer shall prosecute the driver and/or other persons involved in forging and holding a fake driving licence. 7.20 Un-insured vehicle not to be released to the owner If the offending vehicle is not covered by the policy of insurance against third party risks or 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, the motor vehicle involved in an accident resulting in death or bodily injury or damage to property shall not be released, unless and until the registered owner furnishes sufficient security to the satisfaction of the Court to pay compensation that may be awarded in a claim case arising out of such accident. On expiry of three months of the vehicle being taken in possession by the Investigating Officer, such motor vehicle shall be sold off in public auction by the Magistrate having jurisdiction over the area where accident occurred and proceeds thereof shall be deposited with the Claims Tribunal having jurisdiction over the area in question, within fifteen days for purpose of satisfying the compensation that may have been awarded, or may be awarded in a claim case arising out of such accident.
7.21 Duties of police shall be construed to be part of State Police Acts The duties of police enumerated above shall be construed as if they are included in the respective State police Acts and any breach thereof shall entail consequences envisaged in that law.
8. Road Transport and Safety Bill, 2014 Road Transport and Safety Bill, 2014 has substantially incorporated the Claims Tribunal Agreed Procedure. However, some important provisions of Claims Tribunal Agreed Procedure mentioned in paras 7.4, 7.5, 7.6, 7.7, 7.12, 7.16, 7.17, 7.18, 7.19, 7.20 and 7.21 appear to have been left out. The salient features of the Road Transport and Safety Bill, 2014 with respect to the motor accident claims are as under:
8.1 Investigation of road accident cases by police Immediately upon being informed about the accident, the Investigating officer shall inspect the spot of accident; prepare a site plan; take photographs of the accident spot and; conduct a spot inquiry by examining any eye-witnesses and bystanders. [Section 242] 8.2 Intimation of the accident to the Claims Tribunal and Insurance Company within 24 hours The Investigating Officer shall, within 24 hours of the accident, communicate the particulars of the accident to the Claims Tribunal and shall also upload the same on the website of the investigating authority. If the particulars of the insurance are available, he shall also send the communication to the Insurance Company [Section 242(2) & (3)] 8.3 Appointment of Designated Officer by the Insurance Company Immediately upon the receipt of the communication of the particulars of the accident, the Insurance Company shall appoint a Designated Officer for each case, who shall be responsible for dealing and processing of that case and for taking decision on the amount of the compensation payable in accordance with law after DAR has been filed.[Section 242(4)] 8.4 Duty of Investigating Officer to collect evidence with respect to accident of claimant and to file DAR within 15 days of the accident The Investigating Officer shall collect the relevant evidence relating to the accident as well as computation of compensation.
The Investigating Officer shall file the Detailed Accident Information Report, in the manner provided in the Schedule IV, with the Claims Tribunal within fifteen days of the accident, with a copy each to the Insurance Company, the claimant and the National Authority. [Section 242(6)] 8.5 Documents to be filed along with DAR The Detailed Accident Information Report shall be accompanied by:
(a) Certified copies of the first information report
(b) Site plan
(c) Photographs
(d) Registration cover
(e) Driving licence
(f) Insurance policy
(g) Permit
(h) Medico Legal Certificate
(i) Post-mortem report, challan and the documents relating to the proof of age, occupation, income and the number of legal representatives and their age in case of death
(j) Proof of injuries and expenditure incurred by the insured in injury cases.[S.242(7)] 8.6 Extension of time to file DAR Where the Investigating Officer is unable to complete the investigation of the case within fifteen days, the Investigating Officer shall approach the Claims Tribunal for extension of time whereupon the Claims Tribunal may suitably extend the time in the facts of each case, not more than thirty days at a time.[Section 242(9)] 8.7 Duty of Investigating Officer to produce driver, owner, claimant and eye witness before the Claims Tribunal along with DAR The Investigating Officer shall produce the driver, owner, claimant and eye-witnesses before the Claims Tribunal along with the DAR. In case the Police is unable to produce the above said persons on the first date of hearing for reasons beyond its control, the Claims Tribunal shall issue notice to them to be served through Investigating Officer for a date for appearance not later than thirty days. Investigating Officer shall give an advance notice to the concerned Insurance Company so that Designated officer appointed by the Insurance Company can remain present on the first date of hearing before the Claims Tribunal.[Section 242(9)] 8.8 Examination of DAR by Claims Tribunal The Claims Tribunal shall examine whether the DAR is complete in all respects and shall pass an appropriate order in this regard. If the DAR is not complete, the Claims Tribunal shall direct the Investigating Officer to complete the same and shall fix a date for the said completion. [Section 251(4)& (5)] 8.9 Claims Tribunal shall treat DAR as a claim petition for compensation The Claims Tribunals shall treat the Detailed Accident Information Report filed by the Investigating Officer as a claim petition, except in cases where the Police is unable to produce the claimants on the first date of hearing, the Claims Tribunal shall initially register the Detailed Accident Information Report as a miscellaneous application which shall be registered as a main claim petition after the appearance of the claimants.[Section 251(6)] The Claims Tribunal shall list the miscellaneous application for preliminary hearing to enable the police to notify such date to the victim/family of the victim, owner, driver and insurer of the vehicle involved in the accident. [Section 251(7)] After the appearance of the claimants, the miscellaneous application shall be converted and registered as a claim petition. [Section 251(8)] Where the claimants have filed a separate claim petition, the DAR shall be tagged to the claim petition. [Section 251(9)] If no independent claim has been preferred, the Claims Tribunal shall call upon the claimant to submit statement of facts regarding compensation in such form and manner as may be prescribed in this regard. [Section 251(10)] If the police is unable to produce the claimants for up to a period of three months after the first date of hearing, the Claims Tribunal shall deem the matter disposed of. [Proviso to Section 251(11)] Provided that a claimant may, at any time up to a period of six months after the matter has been disposed under sub-
section (11), file a fresh claim relating to the same accident. [Section 251(11)] 8.10 Duty of Insurance Company to process the DAR and submit an offer for settlement within 30 days Where in the opinion of the Insurance Company, a claim is payable, it shall confirm the same to the Claims Tribunal within thirty days of the receipt of complete DAR, by way of an offer of settlement of claim, with supporting calculations, under a duly attested affidavit of the Divisional Officer or Officer appointed for such purpose.[Section 232(1) (a) & (b)
(i) and (ii)] 8.11 Consent award to be passed where claimant accepts the offer of insurance company Where the claimant/claimants accept such offer made by the Insurance Company, the Claims Tribunal shall pass a consent award.[Section 232(1)(b)(iii)(a)] 8.12 Payment of the consent award by Insurance Company within 30 days The payment shall be made by the Insurance Company within a maximum period of thirty days from the date of receipt of such record.[Section 232(1)(b)(iii)(b)] 8.13 Enquiry to continue if claimants reject the offer Where the claimant(s) reject offer made by the insurance company, a date of hearing shall be fixed by the Claims Tribunal to settle such claim.[Section 232(1)(b)(iv)] 8.14 Format of Detailed Accident Information Report (DAR) The format of Detailed Accident Information Report (DAR) been provided in Schedule IV of Road Transport and Safety Bill, 2014.
9. Right of Legal Representatives to claim compensation after the death of the injured The Law Commission in its 178thReport recommended the amendment to Section 306 of the Indian Succession Act, 1925 as well as Section 166 of the Motor Vehicles Act, 1988 to provide for initiation/continuation of proceedings by the legal representatives of the injured person upon his death. The Law Commission referred to Full Bench judgment of the Karnataka High Court in the case of Kannamma v. Dy. General Manager, ILR 1990 Karn. 4300 (FB) in which the Full Bench recommended that amendment of Section 306 of the Indian Succession Act, 1925 and Section 110A of the Motor Vehicles Act, 1939 to permit the survival of the right of the injured person to seek compensation to his legal representatives, irrespective of whether the cause of death was relatable to the accident or not. In the subsequent judgment, the Karnataka High Court in Baburao Sataba Manabutaker v. Doreswamy, (MFA 4072/1998 dated 4.9.2001) lamented delay in amending the law and pointed out that the delay in amendment was causing grave injustice.
10. In Bajaj Allianz General Insurance Co. Ltd. v. Kamla Bist, III (2010) ACC 55, the accident resulted in grievous injuries to the claimant, who filed the claim petition before the Tribunal. The claimant died during the pendency of the petition whereupon his legal representatives were substituted and an award was passed. The Insurance company challenged the award on the ground that the claim petition abated on death of the claimant and the right to sue did not survive in favour of the legal representatives. This Court noted that the report of the Law Commission recommending amendment to Section 306 of the Indian Succession Act, 1925 as well as Section 166 of the Motor Vehicle Act, 1988 to provide for initiation/continuation of the proceeding by the legal representatives of the injured person upon his death. The relevant portion of the said judgment is as under:
"9. The Law Commission made the following recommendations:
We shall, therefore, deal with these amendments seriatum:
(A) Section 306 of the Indian Succession Act, 1925 and illustration (i) below the section:
Section 306 of the Indian Succession Act, 1925 states that among certain other rights, the right of the injured person to seek damages is personal to him and will not survive to his legal representatives. This position so far as accident compensation is concerned, is no longer acceptable in today's social jurisprudence. In fact, such a provision has been given up in England as far back as in 1934. Indian courts have also felt that this provision in Section 306 which does not conform to today's standards of justice and has to be deleted. We are also of the view that this provision is too anachronistic to be allowed to continue in the statute book.
Section 306 as it now stands reads as follows; in so far as it is relevant for the present purpose:
Section 306: All demands whatsoever and all rights to prosecute any action or special proceeding existing in favour of a person at the time of his decease, survive to his executors or administrators; except causes of action for defamation, assault as defined in the Indian Penal Code or other personal injuries not causing the death of the party. There is an illustration below Section 306 and it reads as follows:
Illustrations (i): A collision takes place on a railway in consequence of some neglect or default of an official, and a passenger is severely hurt, but not so as to cause death. He afterwards dies without having brought any action. The cause of action does not survive.
We are of the view that the underlined words in Section 306, namely,
(a) "assault as defined in the Indian Penal Code, or other personal injuries not causing the death of the party" shall be omitted.
(b) illustration (i) shall be omitted. (B) Section 166 of the Motor Vehicles Act, 1988:
Amendment to provide for initiation/continuation of a proceeding under the Act by the legal representatives of an injured person upon his death even if the death has no relation or nexus with the accident:
The existing provisions of Section 166 of the Motor Vehicles Act, 1988 are as follows in so far as they are relevant:
Section 166: An application for compensation arising out of an accident of the nature specified in Sub- section (1) of Section 165 may be made-
(a) by the person who has sustained the injury; or
(b) by the owner of the property; or
(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or
(d) by any agent duly authorized by the person injured or all or any of the legal representatives of the deceased, as the case may be:
Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application. Sub-section (2) and (3) of Section 166 deal with the form, the time limit for filing the application and Sub- section (4) requires the police officer to file a copy of the report before the Claim's Tribunal. The Tribunal may, if it thinks necessary so to do, treat the report as if it were an application for compensation under the Act.
In the light of what we have said earlier, we propose insertion of a new Sub-section (5) in Section 166 as follows:
(5) Notwithstanding anything in this Act or any law for the time being in force, the right of a person to claim compensation for injury in an accident shall upon the death of the person injured, survive to his legal representatives, irrespective of whether the cause of death is relatable or had any nexus with the injury, or not.
Provided that in cases where the cause of death is not relatable or has no nexus with the injury, the compensation shall be restricted to the period between the date of injury and the date of death of the person injured.
(C) Section 110A of the Motor Vehicles Act, 1939 (as applied to pending proceedings in Tribunal or Courts: Transitory provision to be made to provide for initiation/continuation of a proceeding under the Act by the legal representative of the injured person upon his death, even if the death has no relation or nexus with the accident:
The Motor vehicles Act, 1939 has been repealed by the Motor Vehicles Act, 1988 but it is possible that several proceedings initiated under that Act may still be pending either before the Motor Accident Claims Tribunal or at the appellate stage. Such proceedings are obviously saved under Section 217(2) of the Motor Vehicles Act, 1988.
By way of abundant caution and with a view to cover such pending cases we recommend the following provision to be made.
Section 217A - Certain pending proceedings relating to compensation under the Motor Vehicles Act, 1939 not to abate:
Notwithstanding anything contained in the Motor Vehicles Act, 1939 or any law for the time being in force, in respect of claims for compensation under the said Motor Vehicles Act, 1939 which are pending at any stage, at the date of commencement of this Act in any Tribunal or Court, the right of an injured person to claim compensation shall upon the death of the injured person survive to his legal representatives, irrespective of whether the cause of death was relatable or had any nexus with the injury or not, Provided that in cases where the cause of death is not relatable or has no nexus with the injury, the compensation shall be restricted for the period between the date of injury and the date of death of the person injured.
10. The Government is still to act on the recommendation of 178th Report of Law Commission and the position continues as it is which is causing grave injustice to the victims of the road accident.
11. Since the Government has now appointed a Committee to review the entire Motor Vehicles Act, the copy of this order be sent to the Secretary, Ministry of Road Transport and Highways. The copy of this order be also sent to Mr. S. Sunder, Chairman of the Expert Committee appointed by Ministry of Road Transport and Highways to consider the recommendations of the Law Commission."
(Emphasis supplied)
11. Deposit of the award amount In Sobat Singh v. Ramesh Chandra Gupta, MANU/DE/1058/ 2010, it came to the notice of this Court that the Tribunals have been passing the standard orders of disbursement and fixed deposits without examining the financial condition and needs of the claimants and the poor victims are left at the mercy of either accepting the order or again engaging the counsel to approach the Court for modification. On 23rd February, 2010, this Court passed the following directions:-
(i) Before or at the time of passing of the award, the Claims Tribunals shall examine the claimants to ascertain their financial condition and needs and shall pass an order with regard to their share, mode of disbursement, amount to be kept in fixed deposit and period of fixed deposit according to the financial condition of the claimants. (It has been noticed that, in many cases, the Tribunals have been passing the standard orders of disbursement and fixed deposits without examining the financial condition and needs of the claimants and the poor victims are left at the mercy of either accepting the order or again engaging the counsel to approach the Court for modification).
(ii) At the time of examining the Claimants, the Claims Tribunals shall also ascertain the complete address of the claimants as well as their counsel. In the award, the Claims Tribunals shall specifically direct the Insurance company and/or the owner/driver, as the case may be, to deposit the award amount with the Tribunal and/or the Bank along with the interest upto the date of notice of deposit to the claimants with a copy to their counsel. The names and addresses of the claimants and their counsel for issuance of notice of deposit be mentioned in the award.
(iii) If the award amount has been directed to be deposited by the Insurance Company with the bank, copy of the award be sent to the Nodal Officer of the Bank along with the Court stamped copy of the photographs and signatures of the claimants. The photographs and signatures of the claimants be taken at the time of examining them before or at the time of passing the award. Two sets of photographs and signatures should be taken, out of which one set should be sent to the Nodal Officer of the Bank along with the copy of the award and the second set should be retained in the Court record for future reference and/or any irregularity being pointed out. (The forwarding of the Court stamped photographs and the signatures of the claimants would ensure that no attempt is made to defraud the system).
If possible, the proof of residence and the details of the Bank Account should also be collected from the claimant at the time of examining them and one stamped set of the same should also be forwarded to the Bank and the second set be retained in the Court record.
(iv) The Claims Tribunal shall fix a date for reporting compliance in the award itself. The Claims Tribunals shall also direct the Insurance Company and/or driver or owner to place on record the proof of deposit of the award amount, the notice of deposit and the calculation of interest on the date fixed. Upon such proof being filed, the Claims Tribunal shall ensure that the interest upto date of notice of deposit has been deposited by all concerned.
(v) If the award amount is not deposited within the time provided in the award, the Claims Tribunals shall proceed to recover/execute the award in terms of the directions of this Court in the case of New India Assurance Company Ltd. v. Kashmiri Lal, 125(2005)DLT571which are as under:-
"(a) While filing the written statement, the concerned insurance company is required to furnish details of its Bank account and the Bank to the Court. In case a written statement has already been filed in an existing claim, all insurance companies are required to furnish the name of the concerned Bank and their account numbers within 3 months from today.
(b) Within a period of 30 days of the award, which is the period prescribed for depositing the amount under Section 168(3) of the Act to the High Court, the insurance company is required to tender the payment awarded by the MACT by issuing cheques in the name of the claimant(s) unless and until a stay order has been obtained from the High Court. The names of the claimants who are to be paid the amounts along with the amount payable is required to be stated in the award.
(c) If after the expiry of 90 days which is the prescribed period for preferring an appeal under Section 173(1) of the Act, payment of the amount awarded by the MACT has not been made, notice must be issued to the Bank named by the Insurance Company directing such Bank to deposit the cheque drawn in the name of the claimant/claimants legally entitled as per the award covering the amount(s) as per the MACT award within a week of receipt of such orders and cheques should be retained for being given to the claimant.
(d) Once the amount is deposited by cheque as per the aforesaid procedure the MACT is required to ensure that within a period of six weeks thereafter the amount is disbursed to the claimants under the supervision of the Presiding Officer by issuing the said cheque to the claimant so that the claimants are not put to undue harassment.
(e) In case for some reason it is not possible to make the payment to the claimant within six months of the issue of the cheques in the name of the claimant, then the MACT should ensure that such cheques are returned to the Insurance Companies in lieu of fresh cheques drawn in favor of the appropriate account of the MACT which are required to be deposited in an interest bearing short term fixed deposit for a six monthly period by the MACT.
(f) In case the MACT has to resort to the procedure prescribed under sub para (c) above which requires it to secure the amount through the banks upon a failure of the insurance company to deposit the amount within the time stipulated by Section 168(3) and the above procedure, cost of `5000/- payable to the claimant is required to be imposed on the Insurance Companies.
(g) If directions given by the MACT to the Banks are not complied with, the MACT may order freezing of Bank Accounts to the extent covered by the award."
(vi) In all pending execution cases, the Claims Tribunals shall follow the directions of this Court in New India Assurance Company Ltd. v. Kashmiri Lal. The Claims Tribunals shall direct all the Insurance Companies to provide the name of Banker and their Account number within ten days.
(vii) In respect of pending cheques, the Claims Tribunal shall forthwith issue the notice of deposit to the claimants as well as their counsels.
(viii) In respectof the expired cheques, the Claims Tribunal shall also forthwith issue notice to the Insurance Companies with direction to deposit fresh cheques within 30 days.
(ix) Directions with regard to maintenance of records by Nazirs: The record of all the awards passed by the Claims Tribunals shall be maintained by the Nazirs in chronological order according to the date of the award in such a manner that it is easy for the Nazir as well as the enquiring litigants/lawyers to ascertain whether the payment of their award has been received or not. The following can be considered as a format:-
(a) Date of award
(b) Case number
(c) Title of the case
(d) Award amount
(e) Date of deposit of the award amount
(f) Date of notice of deposit by the depositor.
(g) Date of notice of deposit by the Tribunal.
(h) Amount of interest upto date of notice of deposit.
(i) Whether award amount and complete interest deposited.
(j) Balance outstanding interest. (k) Remarks (Action taken to recover the balance interest) 12. Protection of the award amount:
Most of the victims of the road accident are from the lowest strata of the society and are sole bread winners having large family. The legal representatives of the deceased have no knowledge of investment and saving. There is a danger of the money being wasted or the victims being cheated. There is no uniform system for investment in fixed deposit and even the direction for fixed deposit varies from 3 to 10 years.
13. In Oriental Insurance Co. Ltd. v. Man Singh, MANU/DE/3615/2009, the banks formulated the following scheme for victims of road accident at the instance of this Court:-
"UCO Bank and State Bank of India have formulated special scheme for victims of road accidents on the directions of the High Court. The salient features of the scheme of UCO Bank are as under:-
(i) The fixed deposit be renewed automatically till the period prescribed by the Court.
(ii) The interest on the fixed deposit be paid monthly.
(iii) The monthly interest be credited automatically in the saving account of the claimant.
(iv) Original fixed deposit receipt be retained by the bank in safe custody. However, the original passbook shall be given to the claimant along with the photocopy of the FDR.
(v) The original fixed deposit receipt be handed over to the claimant at the end of the fixed deposit period.
(vi) Photo identity card shall be issued to the claimant and the withdrawal shall be permitted only after due verification by the Bank of the identity card of the claimant.
(vii) No cheque book shall be issued to the claimant without permission of the Court.
(viii) No loan, advance or withdrawal shall be allowed on the fixed deposit without permission of the Court.
(ix) The claimant can operate the saving bank account from the nearest branch of UCO Bank and on the request of the claimant, the bank shall provide the said facility.
(x) Half yearly statement of account shall be filed by the UCO Bank with the High Court/Tribunal."
Notice was issued to all other banks through Indian Banks Association in Shobha Gulhar v. Ram Pal, MANU/DE/1061/2010, in response to which all the banks have agreed to extend the above scheme to the claimants which is recorded in the order dated 7th April, 2010.
14. Disbursement of award amount in phased manner In New India Assurance Co. Ltd. v. Ganga Devi, IV (2010) ACC 28, it was pointed out by the learned counsel for the claimants that the Claims Tribunals were passing directions for releasing part of the award amount and the remaining amount was kept in fixed deposit for a long period due to which the claimants are unable to meet their exigencies and have to approach the Tribunal again and again for release of the award amount. It was suggested by learned counsel for the claimants that a direction be given to the Claims Tribunal to keep the amount in fixed deposit in such a manner that the claimants get the award amount in a phased manner which will take care of their exigencies such as illness, marriage of children, education etc. Vide order dated 20th January, 2010, this Court directed that the Claims Tribunal to consider keeping the award amount in fixed deposit in a phased manner depending upon the financial status and financial needs of the claimants. For example, if a sum of `5,50,000/- has been awarded to the claimants, `50,000/- may be released immediately and the remaining amount of `5,00,000/- may be kept in 10 fixed deposits of `50,000/- each for a periods of six months, one year, one and a half years, two years and so on till five years or one year, two years, three years and so on till ten years. If the family of the claimants have school/college going children, the maturity period of the fixed deposit receipts be kept preferably in the month of March every year so that the family is able to meet the annual expenses towards the admission and tuition fee of the children.
15. In Oriental Insurance Co. Ltd v. Ram Kishan, MANU/DE/1236/2010, this court directed that since the FDRs have to be retained by the Bank, the Bank may issue the passbook of the fixed deposit account in which the fixed deposit amount as well as the interest paid are reflected and the maturity amount should automatically be credited in the Saving Bank Account of the beneficiary as and when the fixed deposit gets matured. This will save the botheration of the bank and it shall also save the botheration of the beneficiary to approach the bank again and again for discharge of the FDR. The effect of this modification would be that the bank will issue two passbooks to the beneficiary, one in respect of the Saving Bank Account in which the monthly interest and the maturity amount of the fixed deposit would be credited and the other in respect of fixed deposit account.
16. Deposit of award amount directly in banks In Union of India v. Nanisiri, II (2010) ACC 101,it was brought to the notice of this court that after the deposit of cheques by the Insurance Companies with the Claims Tribunal, no intimation was given to the claimants and in many cases, by the time, the claimant gets the information of deposit of the cheque, the cheque had already expired. It was stated that in many cases, the cheques have also been lost. Vide judgment dated 13th January, 2010, this Court observed that this problem can be resolved by directing the Insurance Companies to directly deposit the award amount with the bank with the direction to the bank to keep specified amount in fixed deposit in terms of the award and release the balance amount by transferring the same to the Saving Bank Account of the victim/claimant. The Motor Accident Claims Tribunals were, therefore, directed to ensure that the Insurance Companies directly deposit the award amount in the bank within 30 days for disbursement in terms of the award and the case be kept pending till the compliance is placed on record.
17. South African Model (Road Accident Fund by way of Cess on fuel) In Rajesh Tyagi v. Jaibir Singh, II (2010) ACC 864, this Court suggested the Government to examine law relating to Motor Accident Claims in South Africa which provides that all vehicles on road are insured for third party risk and the owners of the vehicles are not required to take the insurance policy for third party liability. A surcharge is added to the cost of petrol/diesel and the amount so collected is sent to Road Accident Fund which is managed by Road Accident Fund Commission. The Road Accident Fund Commission manages and disburses the Road Accident Fund. The Commission also enquires into and makes recommendations regarding the system for computation and disbursement of compensation to the victims of road accident. The Commission also examines the factors responsible for the accidents such as excessive speed, influence of alcohol, vehicle fitness, overloading, poor brakes and road environmental conditions including poor maintenance of road surface and inadequate signs and markings. The Commission also makes contribution of Fuel Levy Fund for campaign/programmes to promote road safety. The South African model system shall also save the cost of manpower used by Insurance Companies to issue policies.
18. Road Accident Fund from three sources (Canadian Model) In Master Sewa Ram v. Vijay, III (2010) ACC 608, this Court suggested the Government to also consider the Canadian system where the fund for payment of compensation to the victims of road accidents is collected from the following three sources:-
(i) Insurance contribution payable by the owner of vehicle upon registration of a road vehicle for the right to operate the vehicle.
(ii) Annual Insurance contribution payable by the owner of the vehicle to retain the right to operate the road vehicle.
(iii) Annual Insurance contribution payable by a driving licence holder.
19. In the case of Jai Prakash v. National Insurance Company, (2010) 2 SCC 607, the Supreme Court gave exhausting suggestions to rationalize the law relating to motor accidents claims which are reproduced hereunder:
"We propose to address four problems frequently faced in motor accident claim cases under the Motor Vehicles Act, 1988 ("the Act", for short).
2. The first problem relates to a section of motor accident victims who are doubly unfortunate first, in getting involved in an accident, and second, in not getting any compensation. Let us elaborate. There are two categories of victims in motor accidents those who will be able to get compensation and those who will not be able to get compensation. Victims of motor accidents involving insured vehicles, who are assured of getting compensation from the insurer, fall in the first category. Victims of motor accidents involving the following categories of vehicles, who do not receive any compensation fall under the second category:
(i) Hit-and-run vehicles which remain unidentified.
(ii) Vehicles which do not have any insurance cover.
(iii) Vehicles with third-party insurance, carrying persons who are not covered by the insurance (gratuitous passengers in a goods vehicle or a car, and pillion-riders on two-wheelers, etc.).
3. In hit-and-run cases, the victim has no one from whom he can claim or get compensation. In regard to vehicles which do not have any insurance or do not have an insurance covering the risks relating to gratuitous passengers/riders, even if the driver/owner may be made liable under an award of the Tribunal, there is little or no chance of recovery of compensation that may be awarded. This is because normally drivers and owners of uninsured vehicles will not have the capacity to pay the compensation or would have transferred their assets to escape paying compensation.
4. It is estimated that around 20% of the victims of motor accidents fall under the unfortunate categories who do not get any compensation (except some who may get a token amount under Section 161 or Section 140 of the Act). A person hit by an uninsured vehicle feels frustrated, cheated and discriminated, when he does not get any compensation, but sees another person hit by an insured vehicle getting compensation. The victim does not choose the vehicle which hits him, nor has any role in causing the accident. But a victim is denied compensation, if the vehicle which hits disappears without trace, or if the vehicle is without insurance, while a similar victim hit by an insured vehicle gets compensation. Should the State, which by law provided for compulsory third-party insurance to protect motor accident victims, ignore these 20% victims who do not get compensation or provide them with some effective remedy? Should the State do something to reduce the incidence of non-insurance"
xxx xxx xxx
7. The third problem relates to the procedural delays in adjudication/settlement of claims by the Motor Accidents Claims Tribunals (for short "the Tribunals") and consequential hardship to the victims and their families. In cases where the accident victim dies, the family usually the widow and children loses its sole breadwinner and are virtually driven to the streets. Many a time, the widow and children are forced to take up unaccustomed manual labour for their survival, the children forgoing their education. Payment of compensation without delay will help them to sustain themselves and pick up the threads to live with dignity.
8. Most of the accident victims (who are injured) are not able to access quality medical treatment for want of funds, as their earning capacity is either permanently lost or is put on hold on account of the injuries. They get the compensation only after the treatment and after a contested trial. Many a time lack of treatment or inadequate treatment for want of funds, itself converts what could have been a temporary disability into permanent disability for the victim, thereby increasing the compensation payable. The insurance companies know full well that timely payment of compensation or timely better treatment of the victims can ultimately reduce the quantum of compensation payable by them. The insurance companies also know that they will have to ultimately reimburse the cost of medical treatment of the accident victim with interest. But still they fail to extend timely aid to the injured victims, but wait for the injured to file a claim petition, after completing the treatment at his own cost.
9. The legislature tried to reduce the period of pendency of claim cases and quicken the process of determination of compensation by making two significant changes in the Act, by Amendment Act 54 of 1994, making it mandatory for registration of a motor accident claim within one month of receipt of first information of the accident, without the claimants having to file a claim petition. Sub- section (6) of Section 158 of the Act provides:
"158. (6) As soon as any information regarding any accident involving death or bodily injury to any person is recorded or report under this section is completed by a police officer, the officer in charge of the police station shall forward a copy of the same within thirty days from the date of recording of information or, as the case may be, on completion of such report to the Claims Tribunal having jurisdiction and a copy thereof to the insurer concerned, and where a copy is made available to the owner, he shall also within thirty days of receipt of such report, forward the same to such Claims Tribunal and insurer."
Sub-section (4) of Section 166 of the Act reads thus:
"166. (4) The Claims Tribunal shall treat any report of accidents forwarded to it under Sub-section (6) of Section 158 as an application for compensation under this Act.
10. Rule 150 of the Central Motor Vehicles Rules, 1989 prescribes the form (No. 54) of the police report required to be submitted under Section 158(6) of the Act.
11. This Court in General Insurance Council v. State of A.P. [(2007) 12 SCC 354 :
(2008) 1 SCC (Cri) 384] emphasised the need for implementing the aforesaid provisions. This Court directed: (SCC p. 358, para 10) "10. It is, therefore, directed that all the State Governments and the Union Territories shall instruct, all police officers concerned about the need to comply with the requirement of Section 158(6) keeping in view the requirement indicated in Rule 150 and in Form 54 [Central Motor Vehicles Rules, 1989]. Periodical checking shall be done by the Inspector General of Police concerned to ensure that the requirements are being complied with. In case there is non-compliance, appropriate action shall be taken against the erring officials. The Department of Road Transport and Highways shall make periodical verification to ensure that action is being taken and in case of any deviation immediately bring the same to the notice of the State Governments/Union Territories concerned so that necessary action can be taken against the officials concerned."
12. But unfortunately neither the police nor the Motor Accidents Claims Tribunals have made any effort to implement these mandatory provisions of the Act. If these provisions are faithfully and effectively implemented, it will be possible for the victims of accident and/or their families to get compensation, in a span of few months. There is, therefore, an urgent need for the police authorities concerned and the Tribunals to follow the mandate of these provisions.
13. The courts have always been concerned that the full compensation amount does not reach and benefit the victims and their families, particularly those who are uneducated, ignorant, or not worldly wise. Unless there are built-in safeguards they may be deprived of the benefit of compensation which may be the sole source of their future sustenance. This Court has time and again insisted upon measures to ensure that the compensation amount is appropriately invested and protected and not frittered away owing to ignorance, illiteracy and susceptibility to exploitation. (See Union Carbide Corpn. v. Union of India [(1991) 4 SCC 584] and Kerala SRTC v. Susamma Thomas [(1994) 2 SCC 176 : 1994 SCC (Cri) 335] .) But in spite of the directions in these cases, the position continues to be far from satisfactory and in many cases unscrupulous relatives, agents and touts are taking away a big chunk of the compensation, by ingenious methods.
14. In this background, to find some solutions, on 9-9-2008, this Court requested Shri Gopal Subramanium, to assist the Court as amicus curiae. The learned amicus curiae with his usual thoroughness and commitment has examined the issues and submitted a series of reports and has also made several suggestions for consideration. He has also referred to and relied on a series of zealous directions issued by a learned Single Judge of the Delhi High Court to expedite and streamline the adjudication of motor vehicle claims and disbursement of compensation.
15. Having considered the nature of the problems and taking note of the several suggestions made by the learned amicus curiae and after hearing, we propose to issue a set of directions to the police authorities and the Claims Tribunals. We also propose to make some suggestions for implementation by the insurance companies and some suggestions for the consideration of Parliament and the Central Government.
16. The Director General of Police of each State is directed to instruct all police stations in his State to comply with the provisions of Section 158(6) of the Act. For this purpose, the following steps will have to be taken by the Station House Officers of the jurisdictional police stations:
(i) Accident information report ("AIR", for short) in Form No. 54 of the Central Motor Vehicles Rules, 1989 shall be submitted by the police (Station House Officer) to the jurisdictional Motor Accidents Claims Tribunal, within 30 days of the registration of the FIR. In addition to the particulars required to be furnished in Form No. 54, the police should also collect and furnish the following additional particulars in the AIR to the Tribunal:
(i) The age of the victims at the time of accident;
(ii) The income of the victim;
(iii) The names and ages of the dependent family members.
(ii) The AIR shall be accompanied by the attested copies of the FIR, site sketch/mahazar/photographs of the place of occurrence, driving licence of the driver, insurance policy (and if necessary, fitness certificate) of the vehicle and post-mortem report (in case of death) or the injury/wound certificate (in case of injuries). The names/addresses of injured or dependent family members of the deceased should also be furnished to the Tribunal.
(iii) Simultaneously, a copy of the AIR with annexures thereto shall be furnished to the insurance company concerned to enable the insurer to process the claim.
(iv) The police shall notify the first date of hearing fixed by the Tribunal to the victim (injured) or the family of the victim (in case of death) and the driver, owner and insurer. If so directed by the Tribunal, the police may secure their presence on the first date of hearing.
17. To avoid any administrative difficulties in immediate implementation of Section 158(6) of the Act, we permit such implementation to be carried out in three stages. In the first stage, all police stations/Claims Tribunals in the NCT region and the State capital regions shall implement the provisions by the end of April, 2010. In the second stage, all the police stations/Claims Tribunals in district headquarters regions shall implement the provisions by the end of August, 2010. In the third stage, all the police stations/Claims Tribunals shall implement the provisions by the end of December, 2010. The Directors General shall ensure that necessary forms and infrastructural support is made available to give effect to Section 158(6) of the Act.
18. Section 196 of the Act provides that whoever drives a motor vehicle or causes or allows a motor vehicle to be driven in contravention of the provisions of Section 146 shall be punishable with imprisonment which may be extended to three months, or with a fine which may extend to Rs 1000, or with both. Though the statute requires prosecution of the driver and owner of uninsured vehicles, this is seldom done. Thereby a valuable deterrent is ignored. We therefore direct the Directors General to issue instructions to prosecute drivers and owners of uninsured vehicles under Section 196 of the Act.
19. The Transport Department, Health Department and other departments concerned shall extend necessary cooperation to the Directors General to give effect to Section 158(6).
Directions to the Claims Tribunals
20. The Registrar General of each High Court is directed to instruct all Claims Tribunals in his State to register the reports of accidents received under Section 158(6) of the Act as applications for compensation under Section 166(4) of the Act and deal with them without waiting for the filing of claim applications by the injured or by the family of the deceased. The Registrar General shall ensure that necessary registers, forms and other support is extended to the Tribunal to give effect to Section 166(4) of the Act.
21. For complying with Section 166(4) of the Act, the jurisdictional Motor Accidents Claims Tribunals shall initiate the following steps:
(a) The Tribunal shall maintain an institution register for recording the AIRs which are received from the Station House Officers of the police stations and register them as miscellaneous petitions. If any private claim petitions are directly filed with reference to an AIR, they should also be recorded in the register.
(b) The Tribunal shall list the AIRs as miscellaneous petitions. It shall fix a date for preliminary hearing so as to enable the police to notify such date to the victim (family of the victim in the event of death) and the owner, driver and insurer of the vehicle involved in the accident. Once the claimant(s) appear, the miscellaneous application shall be converted to claim petition. Where a claimant(s) file the claim petition even before the receipt of the AIR by the Tribunal, the AIR may be tagged to the claim petition.
(c) The Tribunal shall enquire and satisfy itself that the AIR relates to a real accident and is not the result of any collusion and fabrication of an accident (by any "police officer-advocate-doctor" nexus, which has come to light in several cases).
(d) The Tribunal shall by a summary enquiry ascertain the dependent family members/legal heirs.
The jurisdictional police shall also enquire and submit the names of the dependent legal heirs.
(e) The Tribunal shall categorise the claim cases registered, into those where the insurer disputes liability and those where the insurer does not dispute the liability.
(f) Wherever the insurer does not dispute the liability under the policy, the Tribunal shall make an endeavour to determine the compensation amount by a summary enquiry or refer the matter to the Lok Adalat for settlement, so as to dispose of the claim petition itself, within a time-frame not exceeding six months from the date of registration of the claim petition.
(g) The insurance companies shall be directed to deposit the admitted amount or the amount determined, with the Claims Tribunals within 30 days of determination. The Tribunals should ensure that the compensation amount is kept in a fixed deposit and disbursed as per the directions contained in Kerala SRTC v.Susamma Thomas [(1994) 2 SCC 176 : 1994 SCC (Cri) 335] .
(h) As the proceedings initiated in pursuance of Sections 158(6) and 166(4) of the Act are different in nature from an application by the victim(s) under Section 166(1) of the Act, Section 170 will not apply. The insurers will therefore be entitled to assist the Tribunal (either independently or with the owners of the vehicles) to verify the correctness in regard to the accident, injuries, age, income and dependants of the deceased victim and in determining the quantum of compensation.
22. The aforesaid directions to the Tribunals are without prejudice to the discretion of each Tribunal to follow such summary procedure as it deems fit as provided under Section 169 of the Act. Many Tribunals instead of holding an inquiry into the claim by following suitable summary procedure, as mandated by Sections 168 and 169 of the Act, tend to conduct motor accident cases like regular civil suits. This should be avoided. The Tribunal shall take an active role in deciding and expeditious disposal of the applications for compensation and make effective use of Section 165 of the Evidence Act, 1872, to determine the just compensation.
Suggestions for the insurance companies
23. In cases of death, where the liability of the insurer is not disputed, the insurance companies should, without waiting for the decision of the Motor Accidents Claims Tribunal or a settlement before the Lok Adalat, endeavour to pay to the family (legal representatives) of the deceased, compensation as per the standard formula determined by the decisions of this Court.
24. In cases of injuries to any accident victim, where the liability is not disputed, the insurer should offer treatment at its cost to the injured, without waiting for an award of the Tribunal. If the insurance companies can meet the bills for treatment of those who have taken a medical insurance policy, we see no reason why they should not extend a similar treatment to the accident victims of vehicles insured with them.
25. In countries like the United Kingdom, the percentage of motor accident claims with reference to the accidents is very low. This is because immediately after being notified of the accident, the insurer makes its own enquiries and satisfies itself about its liability and voluntarily assesses and pays the compensation to the victim. Only where the insurer denies the claim or where the victim is not satisfied with the quantum of compensation paid, the matter goes to court. There is no reason why the insurance companies in India should not adopt such a procedure.
26. In death cases, the calculation of compensation is now standardised by several decisions of this Court (see for example: Sarla Verma v. DTC [(2009) 6 SCC 121 : (2009) 2 SCC (Cri) 1002] ). The insurers can either by relying upon the police report (AIR) or by enquiring with the family or the employer of the deceased, ascertain the three inputs, required for calculation of the compensation, that is, age of the deceased, income of the deceased and number of dependent family members. With these particulars, the insurers can easily calculate the compensation and offer a compensation, either a lump sum or an annuity.
27. Similarly, in cases of injuries, the insurers can offer treatment in hospitals approved by it and meet the expenses or pay the bills, or if the victim has already undergone the treatment, reimburse the cost of treatment. It can also reimburse other items of special damages, the damages for pain suffering, which is also standardised in several decisions of this Court. By such voluntary payment there will be all-
round benefits. The insurers save interest and litigation cost and discharge their obligation to the society. The victims will be relieved from financial hardship and benefit from timely effective treatment. Burden on the courts will be reduced and judicial manpower can be diverted to more complex cases.
28. To protect and preserve the compensation amount awarded to the families of the deceased victim special schemes may be considered by the insurance companies in consultation with Life Insurance Corporation of India, State Bank of India or any other nationalised banks. One proposal is for formulation of a scheme in consultation with the nationalised banks under which the compensation is kept in a fixed deposit for an appropriate period and interest is paid by the bank monthly to the claimants without any need for the claimants having to approach either the court or their counsel or the bank for that purpose. The scheme should ensure that the amount of compensation is utilised only for the benefit of the injured claimants or in case of death, for the benefit of the dependent family.
29. We extract below the particulars of a special scheme offered by a nationalised bank at the instance of the Delhi High Court:
(i) The fixed deposit shall be automatically renewed till the period prescribed by the court.
(ii) The interest on the fixed deposit shall be paid monthly.
(iii) The monthly interest shall be credited automatically in the savings account of the claimant.
(iv) Original fixed deposit receipt shall be retained by the bank in safe custody. However, the original passbook shall be given to the claimant along with the photocopy of the FDR.
(v) The original fixed deposit receipt shall be handed over to the claimant at the end of the fixed deposit period.
(vi) Photo identity card shall be issued to the claimant and the withdrawal shall be permitted only after due verification by the bank of the identity card of the claimant.
(vii) No cheque book shall be issued to the claimant without the permission of the court.
(viii) No loan, advance or withdrawal shall be allowed on the fixed deposit without the permission of the court.
(ix) The claimant can operate the savings bank account from the nearest branch of UCO Bank and on the request of the claimant, the Bank shall provide the said facility.
30. The insurance companies may also consider offering an annuity instead of a lump sum compensation. They may prepare an annuity scheme with the involvement of Life Insurance Corporation of India or its own actuaries, under which they can pay a monthly annuity to the widow (for life) and to minor children (till they attain majority) and in addition a lump sum at the end of 20 or 25 years to the widow. The benefit of such annuity scheme may also be extended to victims who are permanently disabled in accidents. Once such schemes are in place, the victims and the Tribunal will have some choice in the manner of payment of compensation.
31. Whenever the insurance companies find that the driver of the insured vehicle possessed fake/forged driving licence, they should lodge a complaint with the police concerned for prosecution. This will reduce the incidence of fake licences and increase the road travel safety.
Suggestions for legislative/executive intervention
32. We may next refer to some vital areas where intervention by the legislature and/or executive is called for. The suggestions are intended to draw the attention of the executive and legislature to the several vexed issues, which when properly and expeditiously addressed, will improve the system of compensating the motor accident victims. Ensuring that all accident victims get compensation
33. To ensure that all accident victims get compensation, it is necessary to formulate a more comprehensive scheme for payment of compensation to victims of road accidents, in place of the present system of third-party insurance.
34. For example, in South Africa and some other African countries, road accident funds have been created, managed by the Road Accident Fund Commissions, thereby eliminating the need for third- party insurance. A fuel levy/surcharge is collected on the sale of petrol and diesel and credited to such fund. All accident victims, without exception, are paid compensation from out of the said fund by the Commission. But the feedback from operational statistics relating to such funds is that the scheme, while successful in smaller countries, may encounter difficulties and financial deficits in larger countries like South Africa or developing countries with infrastructural deficiencies.
35. An alternative scheme involves the collection of a one-time (lifetime) third-party insurance premium by a central insurance agency in respect of every vehicle sold (in a manner similar to the collection of lifetime road tax). The fund created by collection of such third-party insurance can be augmented/supplemented by an appropriate road accident cess/surcharge on the price of petrol/diesel sold across the country.
36. Such a hybrid model which involves collection of a fixed lifetime premium in regard to each vehicle plus imposition of a road accident cess may provide a more satisfactory solution in a vast country like India. This will also address a major grievance of the insurance companies that their outgoings by way of compensation in motor accident claims is four times the amount received as motor insurance premia. The general insurance companies may however continue with optional insurance to provide cover against damage to the vehicle and injury to the owner.
37. A more realistic and easier alternative is to continue with the present system of third-party insurance with two changes:
(i) Define "third party" to cover any accident victim (that is any third party, other than the owner) and increasing the premia, if necessary.
(ii) Increase the quantum of compensation payable under Section 161 of the Act in case of hit-and-
run motor accidents.
38. India has the dubious distinction of being one of the countries with the highest number of road accidents and the longest response time in securing first aid and medical treatment. There is therefore an urgent need for laying down and enforcing road safety measures and establishment of large number of trauma centres and first-aid centres. It is also necessary to consider the establishment of a Road Safety Bureau to lay down road safety standards and norms, enforce road safety measures, establish and run trauma centres, establish first-aid centres in petrol stations, and carry out research/data collection for accident prevention.
39. Several countries have comprehensive enactments dealing exclusively with accidents. In place of the provisions relating to the Accident Tribunals and award of compensation in the Motor Vehicles Act, 1988, and other statutes dealing with accidents and compensation, enacting a comprehensive and unified statute dealing with accidents may be considered.
Rationalisation of Second Schedule to the Motor Vehicles Act, 1988
40. The Central Government may consider amendment of the Second Schedule to the Act to rectify the several mistakes therein and rationalise the compensation payable thereunder, repeatedly pointed out by this Court (see U.P. SRTC v. Trilok Chandra [(1996) 4 SCC 362] and Sarla Verma [(2009) 6 SCC 121 : (2009) 2 SCC (Cri) 1002]).
Securing the compensation to the victims of accidents involving uninsured vehicles
41. Where there is no insurance cover for a vehicle, the owner should be directed to offer security or deposit an amount, adequate to satisfy the award that may be ultimately passed, as a condition precedent for release of the seized vehicle involved in the accident. If such security or cash deposit is not made, within a period of three months, appropriate steps may be taken for disposal of the vehicle and hold the sale proceeds in deposit until the claim case is disposed of. The appropriate Governments may consider incorporation of a rule on the lines of Rule 6 of the Delhi Motor Accidents Claims Tribunal Rules, 2008 in this behalf."
20. In Zamindar Motor Transport Co. Pvt. Ltd. v. New India Assurance Co. Ltd., III (2010) ACC 690, this Court gave following suggestions for consideration by the Expert Committee constituted by the Ministry of Road Transport and Highways:-
(i) Strict rules regarding issuance of driving licence.
(ii) Computation of data of the driving licences issued all over the country.
(iii) Severe punishment for fake licence.
(iv) Higher punishment for drunken driving.
(v) Severe punishment for the accused who runs away from the spot after causing the accident.
(vi) Severe punishment for removing the vehicle from the spot of the accident and prohibition/punishment for the workshop who repairs the vehicle without clearance by the police.
(vii) Improvement of road conditions.
(viii) Removal of unsafe vehicles from the road.
(ix) Special cell of the police to enforce the law as well as for investigation/inquiry into the accident cases.
(x) The computerization of the records of registration and insurance of the vehicles. The Insurance Policy number of all the vehicles should be duly recorded with the registration authorities so that immediately after the accident, the police can find out the Insurance Policy number and send intimation to the Insurance Company."
21. SUGGESTIONS FOR CONSIDERATION 21.1 Investigation of criminal case be completed and Report under Section 173 Cr.P.C. be filed before the concerned Magistrate within 30 days. A copy of Report under Section 173 Cr.P.C. to be filed by the police with Detailed Accident Information Report (DAR) According to the Claims Tribunal Agreed Procedure, the police is required to complete the investigation of the criminal case and submit the report under Section 173 Cr.P.C. within 30 days of the accident and to file the copy of the report under Section 173 Cr.P.C. along with the DAR. This is a very important aspect because the finding of the police with respect to the issue of rash and negligent driving is necessary to maintain a motor accident claim under Section
251. 21.2 Time limit for filing of the DAR by police According to the Claims Tribunal Agreed Procedure, the Detailed Accident Information Report (DAR) is required to be filed by the police within 30 days whereas the Road Transport and Safety Bill, 2014 provides for filing of DAR within 15 days of the accident which period appears to be insufficient to enable the police to complete the investigation of the criminal case as well as the preparation of the DAR. 21.3 Duty of the Investigating Officer to verify the authenticity of the documents Under the Claims Tribunal Agreed Procedure, the Investigating Officer is required to verify the authenticity of the documents filed along with the DAR which is an important aspect but has not been incorporated in the Road Transport and Safety Bill, 2014.
21.4 Duty of registration authority to verify the registration certificate, driving licence, fitness, permit etc. within 15 days of the application The Claims Tribunal Agreed Procedure provides that the registration authorities shall furnish the requisite information to the police for verification of the documents within 15 days of the receipt of the request from the police. In order to complete the DAR within 30 days of the accident, it is important to cast a duty upon the registration authorities to furnish the requisite information to the police within 15 days of the receipt of the request.
21.5 Duty of the hospitals to furnish the MLC and Postmortem Report to Investigating Officer within 15 days The Claims Tribunal Agreed Procedure casts a duty on the concerned hospitals to issue the MLC and Postmortem Report to the Investigating Officer within 15 days of the accident. This clause is important to enable the police to complete the DAR within 30 days.
21.6 Duty of the Claims Tribunal to satisfy that the amount offered by the Insurance Company is fair and reasonable The Claims Tribunal Agreed Procedure provides that before passing the consent award, the Claims Tribunal shall ensure that the claimants are awarded just compensation in accordance with law which has not been incorporated in the Bill.
21.7 Inquiry to be completed by the Claims Tribunal within 30 days The Claims Tribunal Agreed Procedure provides that if the offer of the Insurance Company is not fair and acceptable to the claimants or if the Insurance Company has any defence available to it under law, the Claims Tribunal shall proceed to conduct an inquiry and shall pass an award within a period of 30 days thereafter which has not been incorporated in the Bill.
21.8 Examination of the claimants Before or at the time of passing of the award, the Claims Tribunal should examine the claimants: -
(i) To ascertain their financial condition/needs and should pass an appropriate order with regard to their share, mode of disbursement, amount to be kept in fixed deposit and period of fixed deposit.
(ii) The Claims Tribunals should also ascertain the complete address and Bank Account details of the claimants. The proof of residence and the details of the Bank Account of the Claimants be collected from the claimants.
(iii) Two sets of photographs and specimen signatures be taken from the claimants.
21.9 Deposit of the award In the award, the Claims Tribunal should specifically direct the Insurance company and/or the owner/driver, as the case may be, to deposit the award amount with the Tribunal and/or the Bank along with the interest upto the date of notice of deposit to the claimants with a copy to their counsel. The names and addresses of the claimants and their counsel for issuance of notice of deposit be mentioned in the award. If the award amount has been directed to be deposited by the Insurance Company with the bank, copy of the award be sent to the Nodal Officer of the Bank along with the Court stamped copy of the photographs, specimen signatures, proof of residence and bank account details of the claimants.
21.10 Scheme for protection of the award amount:
The Claims Tribunal shall, depending upon the financial status and financial need of the claimant(s), release such amount as may be considered necessary and direct the remaining amount to be kept in fixed deposits in phased manner (for example, if a sum of Rs.5,50,000/- has been awarded to the claimants, Rs.50,000/- may be released immediately and the remaining amount of Rs.5,00,000/- may be kept in 10 fixed deposits of Rs.50,000/- each for a periods of six months, one year, one and a half years, two years and so on till five years or one year, two years, three years and so on till ten years). The Claims Tribunal may also consider imposing following conditions with respect to the fixed deposits: -
(i) The interest on the fixed deposits be paid monthly to the Claimant(s).
(ii) The monthly interest be credited automatically in the saving account of the claimant(s).
(iii) Original fixed deposit receipt be retained by the bank in safe custody. However, the original passbook be given to the claimant(s) along with the photocopy of the FDR.
(iv) Photo identity card be issued to the claimant(s) and the withdrawal be permitted upon production of the identity card.
(v) No cheque book be issued to the claimant(s) without permission of the Court.
(vi) No loan, advance or withdrawal be allowed on the fixed deposits without permission of the Court.
(vii) The Bank should not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the victim.
21.11 Compliance of the award The Claims Tribunal shall fix a date for reporting compliance in the award itself. The Claims Tribunal shall also direct the Insurance Company and/or driver or owner to place on record the proof of deposit of the award amount, the notice of deposit and the calculation of interest on the date fixed. Upon such proof being filed, the Claims Tribunal shall ensure that the interest upto date of notice of deposit has been deposited by all concerned. 21.12 Prohibition against release of uninsured motor vehicle involved in an accident Rule 7 of Delhi Motor Accident Claims Tribunal Rules, 2008 prohibits the release of an uninsured motor vehicle. Similar provision needs to be incorporated in the new law. Rule 7 is reproduced hereunder:
"Rule 6 - Prohibition Against Release Of Motor Vehicle Involved In Accident The un-insured motor vehicles involved in the accident and the vehicles in respect of which registered owner fails to furnish copy of the insurance policy despite demand by the investigating officer not to be released by any Court unless the registered owner furnishes sufficient security to the satisfaction of the Court to pay compensation that may be awarded in the motor accident claims. On the expiry of three months of the seizure of the aforesaid vehicle, the motor vehicle shall be sold in public auction by the Magistrate and the proceeds thereof shall be deposited with the Claims Tribunal within 15 days to be adjusted against the award."
21.13 Format of the record of awards The record of all the awards passed by the Claims Tribunals should be maintained by the Nazirs in chronological order according to the date of the award in such a manner that it is easy for the Nazir as well as the enquiring litigants/lawyers to ascertain whether the payment of their award has been received or not. The record should be maintained in the following format: -
a) Date of award b) Case number c) Title of the case d) Award amount e) Date of deposit of the award amount f) Date of notice of deposit by the depositor. g) Date of notice of deposit by the Tribunal. h) Amount of interest upto date of notice of deposit. i) Whether award amount and complete interest deposited. j) Balance outstanding interest. k) Remarks (Action taken to recover the balance interest)
21.14 Format of intimation by the Investigating Officer to the Claims Tribunal and Insurance Company:
Under Sections 242(2) and 242(3), the Investigating Officer has to communicate the particulars of the accident to the Claims Tribunal as well as Insurance Company. The standard draft of such communication would help in streamlining the system. The draft intimation form is given in para 22 below.
21.15 Format of Detailed Accident Information Report (DAR) The most important aspect of Claims Tribunal Agreed Procedure is the format of DAR. The format incorporated in Schedule IV of the Road Transport and Safety Bill, 2014 does not contain the material particulars of the accident, offences, driver, offending vehicle, impact of the accident on the victim(s), apparent contributing circumstances, and the list of relevant documents to be attached along with DAR. The proposed draft Detailed Accident Information Report to be incorporated in Schedule IV of Road Transport and Safety Bill, 2014 is given in para 22 below.
21.16 Compliance of legal provisions to be mentioned in the award In order to implement the new provisions for payment of compensation to the victim of the road accident within 90 days to 120 days of the accident, the Claims Tribunal should deal with the compliance of the new provisions in the award. The format of the check list of the issues required to be dealt with by the Claims Tribunal in its award are given in para 22 below.
21.17 Right of legal representatives of the injured victim to claim compensation after the death of injured Section 238 has been incorporated in Road Transport and Safety Bill, 2014 to enable the legal representatives of the injured to claim compensation after his death. The Law Commission in its 178th Report recommended the amendment to Section 306 of the India Succession Act, 1925 to provide for initiation/continuation of the proceedings by the legal representatives of the injured person upon his/her death. However, Section 238 mentions "death of a person in whose favour a certificate of insurance has been issued" instead of "the death of the victim of the accident" and, therefore, would not enable the legal representatives of the victim to claim the compensation after his death. Section 238 should, therefore, be substituted by the following:
Section 238- Effect of death on certain causes of action Notwithstanding anything contained in section 306 of the Indian Succession Act, 1925 (39 of 1925) or any law for the time being in force, the right of a person to claim compensation for injury in an accident, shall upon the death of the person injured, survive to his legal representatives, irrespective of whether the cause of death is relatable or had any nexus with the injury or not.
Provided that in cases where the cause of death is not relatable or has no nexus with the injury, the compensation shall be restricted to the period between the date of injury and the date of death of the person injured.
Section 238A - Certain pending proceedings relating to compensation under the Motor Vehicles Act, 1988 not to abate Notwithstanding anything contained in the Motor Vehicles Act, 1988 or any law for the time being in force, in respect of claims for compensation under the said Motor Vehicles Act, 1939 which are pending at any stage, at the date of commencement of this Act in any Tribunal or Court, the right of an injured person to claim compensation shall upon the death of the injured person survive to his legal representatives, irrespective of whether the cause of death was relatable or had any nexus with the injury or not;
Provided that in cases where the cause of death is not relatable or has no nexus with the injury, the compensation shall be restricted for the period between the date of injury and the date of death of the person injured.
21.18 Motor Accident Fund Section 248 of the Bill provides for constitution of a motor accident fund by collecting cess, tax or payment as notified and approved by the Central Government. The government may also consider collecting an insurance contribution from the owner of the vehicles at the time of registration, annual insurance contribution payable by the owners of the vehicles and annual insurance contribution payable by the licence holder as suggested in Master Sewa Ram v. Vijay, (supra).
21.19 Schedule II of the Motor Vehicles Act, 1988 not incorporated in the Road Transport and Safety Bill, 2014: 21.19.1 Section 247 of the Road Transport and Safety Bill, 2014 corresponds to Section 163A of the Motor Vehicles Act which provides for payment of compensation cases of the "No fault liability" according to the structured formula, provided in Second Schedule of the Motor Vehicles Act, 1988. However, the Second Schedule has not been incorporated in the Bill.
21.19.2 It is also necessary to point out that the Table providing the multiplier in Second Schedule of the Motor Vehicles Act has certain defects which have been corrected by the Supreme Court in the judgment of Sarla Verma v. DTC (2009) 6 SCC 121. The corrected Schedule according to the judgment of the Supreme Court in Sarla Verma (supra) is as under:
Age of the Multiplier Multiplier deceased (in specified in approved by the years) second Supreme Court column in the table in II Schedule to MV Act
21.19.3 It is also necessary to point out that the Second Schedule of Motor Vehicles Act, 1988 provides for a cap of income of Rs.40,000/- per annum which needs to be increased to Rs.1,00,000/- per annum to be revised after every three years as proposed in the Motor Vehicles (Amendment) Bill, 2012. It would be appropriate to incorporate the Second Schedule of the Motor Vehicles (Amendment) Bill, 2012 subject to correction of the multiplier table.
21.20 No provision for interim compensation in the Road Transport and Safety Bill, 2014 Section 140 of the Motor Vehicles Act, 1988 provides for payment of interim compensation of Rs.50,000/- in case of death and Rs. 25,000 in case of grievous injuries which was increased to Rs.1,00,000/- in death cases and Rs.50,00/- in grievous hurt/permanent disability by Motor Vehicles (Amendment) Bill, 2012. However, this provision has not been incorporated in the Bill. 21.21 Constitution of the National Authority The National Authority constituted under Section 5 comprises of a Chairman and 4 to 8 members. Considering that the National Authority has to ensure the compliance of the new provisions to ensure payment of compensation to the victims of the road accident within 90 to 120 days, it would be appropriate that a judicial member should be part of the National Authority. The copy of the intimation relating to the accident, DAR as well as all awards should be sent to the National Authority who shall consider the same and take such action as may be necessary such as if the accident has resulted due to defective road, the National Authority shall immediately recommend for correction of the same. The National Authority may also consider directing the concerned authorities for placing cameras at particular places. If there is a delay in investigation by the police, the National Authority may take up the matter with the police authorities. In the event of delay on the part of the Designated Officer of the Insurance Company, the National Authority may take up the matter with the CMD of the Insurance Company. 21.22 Computerization of the record The computerization of the records of registration and insurance of the vehicles would enable the police to find out the Insurance Policy number immediately after the accident to send intimation to the Insurance Company.
22. Suggestions incorporated in the Road Transport and Safety Bill, 2014 The aforesaid suggestions have been incorporated in the relevant provisions of the Road Transport and Safety Bill, 2014 for convenient consideration. The same are as under:
"Section 232 - Duties of the insurance company
1. Immediately upon receiving information of occurrence of a case from the relevant authorities, and after the Detailed Accident Information Report hereinafter referred to as "DAR" under Section (242) (4) in connection with that case is filed by the police, the insurance company shall appoint a person as a designated officer for each case, who shall be responsible for:
(a ) processing that case and
(b) for taking decisions for the amount of compensation payable in accordance with law.
(i) Where in the opinion of the Insurance Company, a claim is payable it shall confirm the same to the Claims Tribunal within thirty days of the receipt of complete Detailed Accident Information Report, by way of an offer of settlement of claim, with supporting calculations, under a duly attested affidavit of the Divisional Officer or Officer appointed for such purpose;
(ii) The claimant or claimants, as the case may be, shall provide a response stating their acceptance or rejection of the offer of settlement of claim, under a duly attested affidavit submitted to the Claims Tribunal;
(iii) Where the claimant or claimants, as the case may be, accept such offer that has been filed by the insurance company;
a. the Claims Tribunal shall make a record of such settlement, and such record shall be deemed to be a consent decree; and b. the payment shall be made by the insurance company within a maximum period of thirty days from the date of receipt of such record.
(iv) Where the claimant or claimants, as the case may be, reject such offer that has been filed by the insurance company, a date of hearing shall be fixed by the Claims Tribunal to settle such claim.
(iv) If the offer of the Insurance Company is not fair and, therefore, not acceptable to the claimants or if the Insurance Company has any defence available to it under the law, the Claims Tribunal shall proceed to conduct an inquiry and shall pass an award within a period of 30 days thereafter.
Section 232(1A) Right of the Insurance Company to get DAR verified by their own officer The Insurance Company has the right to get the statements made in the DAR verified through their surveyor or the investigator. If the statements made in the DAR are incorrect, the Designated Officer shall submit a report before the Claims Tribunal with a copy to the DCP of the area concerned.
2. The insurance company may, at any stage of the proceeding, file an application under Section (259), which shall be considered and adjudicated upon by the Claims Tribunal on its own merits.
3. While filing the detailed written statement in response to the claim, the concerned insurance company is required to furnish details of its Bank account, and the Bank to the Claims Tribunal.
4. The insurance company is required to tender the payment awarded by the Claims Tribunal by issuing cheques in the name of the claimant(s) within a period of thirty days of the award, which is the period prescribed for depositing the amount under Section (253)(3) to the High Court, unless a stay order has been obtained from the High Court; and the names of the claimants who are to be paid the amounts along with the amount payable shall be stated in the award.
Section 238. Effect of death on certain causes of action Notwithstanding anything contained in section 306 of the Indian Succession Act, 1925 (39 of 1925) the death of a person in whose favour a certificate of insurance had been issued, if it occurs after the happening of an event which has given rise to a claim under the provisions of this Chapter, shall not be a bar to the survival of any cause of action arising out of the said event against that person's estate or against the insurer or any law for the time being in force, the right of a person to claim compensation for injury in an accident, shall upon the death of the person injured, survive to his legal representatives, irrespective of whether the cause of death is relatable or had any nexus with the injury or not.
Provided that in cases where the cause of death is not relatable or has no nexus with the injury, the compensation shall be restricted to the period between the date of injury and the date of death of the person injured.
Section 238A. Certain pending proceedings relating to compensation under the Motor Vehicles Act, 1988 not to abate:-
Notwithstanding anything contained in the Motor Vehicles Act, 1988 or any law for the time being in force, in respect of claims for compensation under the said Motor Vehicles Act, 1988 which are pending at any stage, at the date of commencement of this Act in any Tribunal or Court, the right of an injured person to claim compensation shall upon the death of the injured person survive to his legal representatives, irrespective of whether the cause of death was relatable or had any nexus with the injury or not;
Provided that in cases where the cause of death is not relatable or has no nexus with the injury, the compensation shall be restricted for the period between the date of injury and the date of death of the person injured.
Section 242. Procedure for investigation
1. Immediately upon being informed about the accident under section (241), the investigating officer appointed in this regard by the police shall:
(i) inspect the spot of accident; (ii) prepare a site plan;
(iii) take photographs of the accident spot;
(iv) conduct a spot inquiry by examining any eye-witnesses and bystanders.
2. The investigating officer shall communicate the particulars of the accident, within twenty four hours of the accident, to:
a) the Claims Tribunal; and b) if the particulars of insurance are available, the
concerned insurance company of the offending vehicle.
3. The particulars of the accident shall be uploaded on the website of the investigating authority.
4. Immediately upon receipt of communication of the particulars of the accident, the insurance company shall appoint a Designated Officer for each case, who shall be responsible for dealing with and processing of that case and for taking decision for the amount of compensation payable in accordance with law after the Detailed Accident Information Report by the police.
5. The Investigating Officer shall collect the relevant evidence relating to the accident as well as computation of compensation 5A. The Investigating Officer shall complete the investigation of the criminal case and submit a report under Section 173 Cr.P.C. before the concerned Metropolitan Magistrate within 30 days of the accident.
6. The Investigating Officer shall file the Detailed Accident Information Report, including in the manner provided in the Schedule IV, with the Claims Tribunal within 15 30 days of the accident, with a copy each to the Insurance Company, the claimant and the National Authority. The Investigating Officer shall file the copy of the DAR with the concerned Metropolitan Magistrate.
7. The Detailed Accident Information Report shall be accompanied by:
(a) certified copies of the first information report;
(b) site plan; (c) photographs; (d) registration cover; (e) driving licence; (f) Insurance policy; (g) permit; (h) Medico Legal Certificate; (i) post-mortem report, challan and the documents relating
to the proof of age, occupation, income and the number of legal representatives and their age in case of death; and
(j) proof of injuries and expenditure incurred by the insured in injury cases.
(i) First Information Report (ii) Site plan in terms of Clause 11 (iii) Photographs of the scene of accident from all angles. (iv) Photographs of all the vehicles involved in the accident from all angles (v) Photograph and specimen signature of the driver(s) of the offending vehicle(s) (vi) Photograph and specimen signature of the owner(s) of the offending vehicle (vii) Mechanical Inspection Report in terms of Clause 18 (viii) Driving license of the driver (ix) Proof of employment of driver such as appointment
letter, salary slips, duty register etc.
(x) Registration certificate of the offending vehicle(s)
(xi) In case of transfer of vehicle, sale documents, possession letter or any other document relating to transfer, if any
(xii) Insurance Policy of the offending vehicle(s)
(xiii) Permit (for commercial vehicle)
(xiv) Fitness Certificate (for commercial vehicle)
(xv) Report under Section 173 Cr.P.C. (xvi) Statements of the witnesses recorded by the police (xvii) Scientific report, if the driver was under the influence of liquor/drugs (xviii) In case of Death
(a) Post Mortem Report
(b) Death certificate
(c) Photograph and proof of the identity of the dead
(d) Proof of age of the deceased which may be in form of :
Birth certificate School certificate Certificate from gram panchayat (in case of illiterate)
(e) Proof of Occupation and income of the deceased which may be in form of :
Pay slip/salary certificate for salaried employees.
Bank statements of the last six months.
Income Tax Returns Balance Sheets
(f) Proof of the legal representatives of the deceased Names Age Address Relationship
(g) Photographs, specimen signatures attested by the bank and identity proof of the legal representatives of the deceased
(h) Bank Account no. of the legal representatives of the deceased with name and address of the bank
(i) Treatment record, medical bills and other expenditure (xix) In case of Injury
(a) MLC
(b) Multi angle photographs of the injured
(c) Photographs, specimen signatures attested by the bank and identity proof of the injured
(d) Proof of age of the injured which may be in form of :
Birth certificate School certificate Certificate from Gram Panchayat (in case of illiterate)
(e) Proof of occupational income of the injured at the time of the accident which may be in form of:
Pay slip/salary certificate for salaried employees.
Bank statements of the last six months of the deceased.
Income Tax Returns Balance Sheets
(f) Treatment record, medical bills and other expenditure - In case of long term treatment, the SHO/IO shall also record the details so that the claimant may furnish documents before the Claims Tribunal.
(g) Disability certificate
(h) Proof of absence from work where loss of income on account of injury is being claimed, which may be in the form of:
Certificate from the employer Extracts from the attendance register
(i) Proof of reimbursement of medical expenses by employer or under a Mediclaim policy, if taken (xx) Any other relevant document(s) 7A. The Investigating Officer shall verify the authenticity of the documents mentioned above by obtaining confirmation in writing from the office or authority or person purporting to have issued the same or by such further investigation or verification as may be necessary for arriving at a conclusion of authenticity of the documents in question, including but not limited to verifying the license of the driver and permit of the vehicle, where applicable, from the registering authority.
7B. The Registration authorities shall verify the registration certificate, driving licence, fitness and permit in respect of the offending vehicle within 15 days of the application being made by the Investigating Officer.
7C. The concerned hospitals shall issue the MLC and Post-Mortem Report to the Investigating Officer within 15 days of the accident.
8. The Investigation Officer shall immediately electronically record or archive the completed Detailed Accident Information Report to a data repository specified by the National Authority and shall transmit such Detailed Accident Information Report by means of uploading a photographic copy, scanned copy or any other means prescribed by the National Authority with the aim of recording the original form of the Detailed Accident Information Report and contents thereof.
9. Where the Investigating Officer is unable to complete the investigation of the case within fifteen thirty days, the Investigating Officer shall approach the Claims Tribunal for extension of time whereupon the Claims Tribunal may suitably extend the time in the facts of each case, not more than thirty days at a time, in cases of:
(a) hit and run accidents; (b) cases where the parties reside outside the jurisdiction of the Court cases; or (c) where the victim has suffered grievous injuries and is
undergoing treatment in cases where the victim was the only victim.
9. (a) The Investigating Officer shall produce the driver, owner, claimant and eye-witnesses before the Claims Tribunals along with the Detailed Accident Information Report.
(b) In case the Police is unable to produce the owner, driver, clamant and eyewitnesses before the Claims Tribunal on the first date of hearing for the reasons beyond its control, the Claims Tribunal shall issue notice to them to be served through the Investigating Officer for a date for appearance not later than thirty days.
(c) The Investigating Officer shall give advance notice to the Insurance Company about the date of filing of the Detailed Accident Information Report before the Claims Tribunal so that the nominated counsel for the Insurance Company can remain present on the first date of hearing before the Claims Tribunal.
10. If the offending vehicle is found to be un-insured, the Investigating Officer shall prosecute the owner and driver of the offending vehicle under Section 305 of the Road Transport and Safety Bill, 2014.
11. If the driving licence of the driver is found to be fake, the investigating Officer shall prosecute the driver and/or other persons involved in forging a fake licence.
12. The duties of police enumerated above shall be construed as if they are included in the respective State police Acts and any breach thereof shall entail consequences envisaged in that law.
Section 242A. Prohibition against release of un-insured motor vehicle involved in an accident If the offending vehicle is not covered by the policy of insurance against third party risks or 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, the motor vehicle involved in an accident resulting in death or bodily injury or damage to property shall not be released, unless and until the registered owner furnishes sufficient security to the satisfaction of the Court to pay compensation that may be awarded in a claim case arising out of such accident. On expiry of three months of the vehicle being taken in possession by the Investigating Officer, such motor vehicle shall be sold off in public auction by the Magistrate having jurisdiction over the area where accident occurred and proceeds thereof shall be deposited with the Claims Tribunal having jurisdiction over the area in question, within fifteen days for purpose of satisfying the compensation that may have been awarded, or may be awarded in a claim case arising out of such accident.
Section 247. Special provisions as to payment of compensation on structured formula basis.
1. Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle of the authorized insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle compensation, as notified by the Central Government indicated in Seventh Schedule to the legal heirs or the victim, as the case may be.
Explanation - For the purposes of this sub-section, "permanent disability" shall have the same meaning and extent as in the Workmen's Compensation Act, 1923.
2. In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.
3. The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Seventh Schedule.
Section 248 - Motor Accident Fund (1) A Fund, called the Motor Accident Fund, shall be constituted and the following shall be credited to the Fund:
(a) A cess or tax or payment of a nature notified and approved by Central Government;
(aa) Insurance contribution payable by the owner of a vehicle at the time of registration of a motor vehicle as notified and approved by the Central Government;
(aaa) Annual insurance contribution payable by the owner of a motor vehicle as notified and approved by the Central Government;
(aaaa) Annual insurance contribution payable by a driving licence holder as notified and approved by the Central Government;
(b) Any grant or loan made to the Fund by the Central Government;
(c) Any other source of income as may be specified by the Central Government.
(2) The Fund shall be constituted for the purpose of providing compulsory insurance cover to all road users in the territory of India.
(3) The following persons may claim from the Fund:
(a) A person who has been grievously hurt in a road accident till such time as the person may be stabilized;
(b) One or more legal representatives of a person who died in a road accident that was not caused by the deceased on whose behalf the claim is being made and for which road accident no person can be held liable;
(c) A person grievously hurt in a road accident where no fault can be fixed upon either that person or on any other person involved in the accident; (cc) The death or injury of a person caused by an un-insured vehicle.
Provided that in such cases, the National Authority shall be entitled to recover the amount from the owner and driver of the offending vehicle.
(d) Any other person as the National Authority may specify by regulations.
(4) The maximum liability of the Fund in any case shall be as may be specified by the National Authority.
(5) In all cases specified in sub-section 3(a), when the claim of such person becomes payable, then the Fund is entitled to recover from the insurer the amount equivalent to such compensation received by such person.
(6) The Fund shall be managed by such authority or agency as the National Authority may specify with special regard to the following:
(a) Knowledge of insurance business of the agency;
(b) Capability of the agency to manage funds;
Any other criteria the National Authority may prescribe.
Section 251 - Application for compensation
1. An application for compensation arising out of an accident of the nature specified in sub-section (1) of section (252) may be made:
(a) by the person who has sustained the injury; or
(b) by the owner of the property; or
(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or
(d) by any agent duly authorised by the person injured, or all or any of the legal representatives of the deceased, as the case may be.
Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application.
2. Every application under sub-section (1) shall be made in such form and manner as may be notified by the National Authority at the option of the claimant either to the Claims Tribunal having jurisdiction over the area in which the accident occurred or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides, or carries on business, or within the local limits of whose jurisdiction the defendant resides.
3. The Claims Tribunal shall treat any Detailed Accidental Information Report forwarded to it under section (242) as an application for compensation under this Act.
4. The Claims Tribunals shall examine whether the Detailed Accident Information Report is complete in all respects and shall pass appropriate orders in this regard.
5. If the Detailed Accident Information Report is not complete in any particular respect, the Claims Tribunal shall direct the Investigating Officer to complete the same and shall fix a date for the said completion.
6. The Claims Tribunals shall treat the Detailed Accident Information Report filed by the Investigating Officer as a claim petition under sub-section (4), except in cases where the Police is unable to produce the claimants on the first date of hearing, the Claims Tribunal shall initially register the Detailed Accident Information Report as a miscellaneous application which shall be registered as a main claim petition after the appearance of the claimants.
7. The Claims Tribunal shall list the miscellaneous application for preliminary hearing to enable the police to notify such date to the victim/family of the victim, owner, driver and insurer of the vehicle involved in the accident.
8. After the appearance of the claimants, the miscellaneous application shall be converted and registered as a claim petition.
9. Where the claimants have filed a separate claim petition, the Detailed Accident Information Report shall be tagged to the claim petition.
10. If no independent claim has been preferred, the Claims Tribunal shall call upon the claimant to submit statement of facts regarding compensation in such form and manner as may be prescribed in this regard.
11. If the police is unable to produce the claimants for up to a period of three six months after the first date of hearing, the Claims Tribunal shall deem the matter disposed of.
Provided that a claimant may, at any time up to a period of six months one year after the matter has been disposed under sub- section (11), file a fresh claim relating to the same accident.
Section 251A - Where the Claims Tribunal finds that the DAR and in particular the report under Section 173, Cr.P.C., annexed to such DAR has brought a charge of rash and negligent driving, or the causing of hurt or grievous hurt the Claims Tribunal shall register the claim case under Section 251. In cases where the DAR does not bring a charge of negligence or despite the charge of negligence the Claimant(s) before the Court chose to claim on a No-fault basis, the Claims Tribunal shall register a claim case under Section 247.
Section 253 - Award of Claims Tribunal
1. On receipt of an application for compensation made under section (251), the Claims Tribunal shall, after giving notice of the application to the insurer and after giving the parties (including the insurer) an opportunity of being heard, hold an inquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of section (246) may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be.
1A. The Claims Tribunal shall endeavour to complete the inquiry within a period of 90 to 120 days of the accident. 1B. The Claims Tribunal shall send copy of the award to the Metropolitan Magistrate dealing with criminal case as well as to the National Authority. The Investigating Officer shall also submit a copy of the award passed by the Claims Tribunal before the Metropolitan Magistrate dealing with the criminal case.
2. The Claims Tribunal shall, while making an award under this Chapter, also refer to the impairment schedule detailing the various types of injuries or impairments along with the compensation prescribed thereunder which shall be notified under this Section by the Central Government in consultation with the Union Ministry of Health and Family Welfare and the National Authority.
Provided that the said Schedule shall be updated by the National Authority from time to time.
2A. The Claims Tribunal shall deal with the compliance of the provisions mentioned in Schedule VI in the award.
3. The Claim Tribunal shall arrange to deliver copies of the award to the parties concerned expeditiously and in any case within a period of fifteen days from the date of the award.
4. When an award is made under this section, the person who is required to pay any amount in terms of such award shall, within thirty days of the date of announcing the award by the Claims Tribunal, deposit the entire amount awarded in such manner as the Claims Tribunal may direct.
Section 253(1A) Before or at the time of passing of the award, the Claims Tribunal shall examine the claimants: -
(i) To ascertain their financial condition/needs and shall pass an appropriate order with regard to their share, mode of disbursement, amount to be kept in fixed deposit and period of fixed deposit.
(ii) The Claims Tribunal shall also ascertain the complete address and Bank Account of the claimants.
(iii) The proof of residence and the details of the Bank Account of the Claimants be collected from the claimants.
(iv) Two sets of photographs and specimen signatures shall be taken from the claimants.
Section 253(1B) In the award, the Claims Tribunals shall specifically direct the Insurance company and/or the owner/driver, as the case may be, to deposit the award amount with the Tribunal and/or the Bank along with the interest upto the date of notice of deposit to the claimants with a copy to their counsel. The names and addresses of the claimants and their counsel for issuance of notice of deposit be mentioned in the award. If the award amount has been directed to be deposited by the Insurance Company with the bank, copy of the award be sent to the Nodal Officer of the Bank along with the Court stamped copy of the photographs, signatures, proof of residence and bank account details of the claimants.
Section 253(1C) The Claims Tribunal shall, depending upon the financial status and financial need of the claimant(s), release such amount as may be considered necessary and direct the remaining amount to be kept in fixed deposits in phased manner (for example, if a sum of Rs.5,50,000/- has been awarded to the claimants, Rs.50,000/- may be released immediately and the remaining amount of Rs.5,00,000/- may be kept in 10 fixed deposits of Rs.50,000/- each for a periods of six months, one year, one and a half years, two years and so on till five years or one year, two years, three years and so on till ten years). The Claims Tribunal may also consider imposing following conditions with respect to the fixed deposits: -
(i) The interest on the fixed deposits be paid monthly to the Claimant(s).
(ii) The monthly interest be credited automatically in the saving account of the claimant(s).
(iii) Original fixed deposit receipt be retained by the bank in safe custody. However, the original passbook shall be given to the claimant(s) along with the photocopy of the FDR.
(iv) Photo identity card be issued to the claimant(s) and the withdrawal shall be permitted on production of the photo identity card of the claimant(s).
(v) No cheque book be issued to the claimant(s) without permission of the Court.
(vi) No loan, advance or withdrawal be allowed on the fixed deposit without permission of the Court.
(vii) The Bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposits of the victim.
Section 253(2A) The Claims Tribunal shall fix a date for reporting compliance in the award itself. The Claims Tribunal shall also direct the Insurance Company and/or driver or owner to place on record the proof of deposit of the award amount, the notice of deposit and the calculation of interest on the date fixed. Upon such proof being filed, the Claims Tribunal shall ensure that the interest upto date of notice of deposit has been deposited by all concerned.
Section 253(2AA) If the award of the Claims Tribunal is stayed by the High Court in appeal, the Claims Tribunal shall close the case with liberty to the claimant(s) to revive the same after the decision of the appeal.
Section 258 - Registers
1. The Claims Tribunal shall maintain in addition to any register that may be required to be maintained by a court of Additional District Judge, the following registers:
(a) Register for applications for interim award on principle of no fault liability;
(b) Register for deposit of payments in the Claims Tribunal through cheques, etc.
2. Claim petitions on the ground of death, permanent disability, injury and damage to property shall be entered in a separate register.
3. The record of all the awards passed by the Claims Tribunals shall be maintained by the court officials in such manner as may be prescribed.
The record of all the awards passed by the Claims Tribunals shall be maintained according to the date of the award in such a manner that it is easy for the Nazir as well as the enquiring litigants/lawyers to ascertain whether the payment of their award has been received or not. The record shall be maintained in the following format:-
a) Date of award b) Case number c) Title of the case d) Award amount e) Date of deposit of the award amount f) Date of notice of deposit by the depositor. g) Date of notice of deposit by the Tribunal. h) Amount of interest upto date of notice of deposit. i) Whether award amount and complete interest deposited. j) Balance outstanding interest. k) Remarks (Action taken to recover the balance interest) SCHEDULE IV
MODIFIED FORMAT OF DETAILED ACCIDENT REPORT" (DAR) PART I PARTICULARS OF THE ACCIDENT S. No.
1. FIR No., date and under Section
2. Name of the Police Station
3. Offences as per report under Section 173 CrPC
4. Date, time and place of accident
5. Who reported the accident to the Police?
(Give name, address & contact no.)
(a) Driver/Owner
(b) Victim
(c) Witness
(d) Hospital/Medical facility
6. Name of the person who took the victim to the hospital and name of the hospital
7. Whether any hospital denied treatment to the victim?
8. Nature of the accident:
(a) Whether resulted in death or injury or both?
(b) Number of persons injured/died
9. Particulars of the offending vehicle(s)
10. Whether the victim was:
(a) Pedestrian/ bystander
(b) Cyclist
(c) Scooterist
(d) Travelling in a vehicle. If so, whether at driving seat, back seat, front seat, side car, travelling at rear guard cargo area, etc.
(e) Victims vehicle no.
(f) No. of persons in the victims vehicle
11. Name and contact no. of the Investigating Officer
12. Names of witnesses of the accident
13. Brief description of the accident PART II SITE PLAN
14. Date of preparation of the site plan
15. Site Plan should indicate:
(i) Place of accident
(ii) Position of vehicle(s)
(iii) Position of victim(s)
(iv) Skid marks
(v) Lane in which the accident took place
(vi) Permissible speed limit on the road at the site of the accident
(vii) Whether traffic control such as presence of police officer, road markings, warning sign, stop sign were there?
(viii) Location of zebra crossing or pedestrian zone
(ix) Whether near traffic lights? If so, whether functional?
(x) Distance of speed breakers, if any, from the spot of accident
(xi) Width and type of road - national highway/city road/expressway/rural road, etc.
(xii) Direction of the vehicle(s):
(a) Same direction (rear end)
(b) Same direction (side swipe)
(c) Right angle
(d) Opposite direction (angular)
(e) Opposite direction side swipe
(f) Struck parked vehicle
(g) Left turn
(h) U-turn reversing.
(xiii) Directions of movement of the Vehicle
(a) North
(b) East
(c) South
(d) West
(xiv) Road Divided by
(a) Barrier Median
(b) Curbed Median
(c) Grass Median
(d) Painted Median
(e) None
(xv) Light Condition
(a) Daylight
(b) Dusk
(c) Dark (No Street Lights)
(d) Dark (Street Lights On, Spot)
(e) Dawn
(f) Dark (Street Lights Off)
(g) Dark (Street Lights On, Continuous) (xvi) Visibility/Environmental Condition
(a) Clear
(b) Fog/Smog/Smoke
(c) Snow
(d) Severe Crosswinds
(e) Rain
(f) Blowing Sand or Dirt
(g) Sun Glare (xvii)Road Character
(a) Straight and Level
(b) Straight and Grade
(c) Straight and Hillcrest
(d) Curve and Level
(e) Curve and Grade
(f) Curve and Hillcrest
(g) Under construction/maintenance (xviii) Road Surface Type
(a) Concrete
(b) Blacktop
(c) Gravel
(d) Steel Grid
(e) Dirt
(f) Pot Holes
(g) Cave in
(h) Construction Material on Road (xix) Road Surface Condition
(a) Dry
(b) Wet
(c) Snowy
(d) Water (standing /moving)
(e) Sand, mud, dirt
(f) Oil (xx) Airbag Deployment
(a) Front
(b) Side
(c) Multiple
(d) None (xxi) Ejection from Vehicle
(a) Not ejected
(b) Ejected
(c) Partial Ejection
(d) Trapped (xxii)Temporary Traffic Zone
(a) None
(b) Construction zone
(c) Maintenance Zone
(d) Utility Zone
(e) Incident Zone (xxiii) Total Number of entities involved in the crash Crash Type:
With other motor vehicle as first event:
(a) Same Direction (Rear End) (b) Same Direction (Slide Sweep) (c) Right Angle (d) Opposite Direction (Hereon, Angular) (e) Opposite Direction (Slide Sweep) (f) Struck Parked Vehicle (g) Left Turn/U Turn (h) Backing (i) Encroachment With below as first event: (a) Overturn (b) Fixed Object (c) Animal (d) Pedestrian (e) Pedal Cyclist (f) Non-fixed Object (g) Railcar Vehicle PART III MECHANICAL INSPECTION OF ALL THE VEHICLES INVOLVED IN THE ACCIDENT
(Submit separate Mechanical Inspection Report for each vehicle)
16. Date of mechanical inspection of the Vehicle(s)
17. Name and address of the Mechanical Officer
18. Format of the Mechanical officer report:
(i) Case FIR No
(ii) Under Section
(iii) Police Station
(iv) Registration No. of vehicle
(v) In case of commercial vehicle :
(a) Particulars of fitness
(b) Particulars of permit
(vi) Point of impact and damage
(vii) Mechanical condition of the vehicle
(viii) Paint marks (if any)
(ix) Condition of braking System i.e. working or not?
(x) Whether the vehicle fitted with Anti-lock Braking System (ABS)?
(a) If yes, whether it is functioning or not?
(b) Whether trials regarding skid marks of ABS fitted vehicle have been carried out to estimate the speed of the vehicle
(xi) Whether the brake lights & other lights functional?
(xii) Condition of safety bags in the vehicle
(xiii) Whether the vehicle properly maintained
(xiv) Whether the vehicle had faulty number plate?
(xv) Whether the vehicle had tinted glasses?
(xvi) Details of damage on the vehicle Mechanical Officer (Name & Stamp) SHO Date (Name & Stamp) PART - IV PARTICULARS OF THE DRIVER(S)
(In case of more than one driver, submit separate Part IV for each driver)
19. Name, address and contract no. of the driver
20. Age
21. Gender
22. Occupation
23. Family
24. Income (monthly)
25. Account No. with name and address of the Bank in which the driver is maintaining his account
26. Driving licence:
(a) Driving License No.
(b)Whether learner license?
(c) Period of validity
(d)Issued by
(e) Class of vehicle
(f) Whether license suspended or cancelled?
27. In case of learners licence:
(a) Whether driving under supervision
(b) Whether driving with lapsed learner license
28. Whether driver is the owner/paid driver/otherwise?
29. Whether driving with the knowledge / consent of the owner?
30. Whether driving under influence of liquor/drugs? Whether finding based on scientific report?
31. (a) Whether the driver reported the accident to the police?
(b) Whether discharged duty under Section 224 & 225?
(c) If not, whether the driver has been prosecuted under Section 318?
32. Whether the driver fled from the spot? If so, the date on which he appeared before the police/Court or was arrested?
33. Any other relevant information relating to the driver PART V PARTICULARS OF THE OFFENDING VEHICLE (S) (In case of more than one vehicle, submit separate Part V for each vehicle)
34. (a) Registration No.
(b) Colour
(c) Make
(d) Model
(e) Year
(f) Engine No.
(g) Chasis No.
(h) Address of the Registering Authority
(i) Private or Commercial (public service vehicle, goods carriage/educational institution bus)
35. Name, address and contact number of the owner:
(a) In case of company, person in charge in terms Section 320
(b) In case of sale of the vehicle, give particulars of the purchaser and date of transfer
36. In case of commercial vehicle:
(a) Particulars of fitness
(b) Particulars of permit
37. Whether driver employed on monthly or daily basis?
Attach the proof of employment of driver such as appointment letter, salary slip, duty register or other relevant documents
38. In case the driver fled from the spot, did the owner produce the driver before the police?
39. Whether the owner reported the accident to the Insurance Company? If so, when?
40. Whether the owner co-operated in the investigation?
41. In the case of uninsured vehicle:
(a) Whether the owner prosecuted under Section 305 of the MV Act, 1988?
(b) Whether the driver/owner made payment of compensation to the victim or his family? Give particulars, if available.
PART - VI PARTICULARS OF THE INSURANCE OF THE VEHICLE(S)
42. Policy Number
43. Period
44. Issued by (give name and address of the Insurance Company)
45. Nature of policy i.e. Third party or comprehensive
46. Name, address and contact number of the Designated Officer of the Insurance Company
47. Date of intimation of the accident by the Investigating Officer to the Insurance Company
48. Date of appointment of the Designated Officer by the Insurance Company
49. Account no. with name and address of the Bank in which the Insurance company is having its account PART - VII IMPACT OF THE ACCIDENT ON THE VICTIM(S) (In case of more than one victim, submit separate Part IV for each victim)
50. Death Cases:
(a) Name and address of the deceased
(b) Age
(c) Gender
(d) Education
(e) Occupation
(f) Income (monthly)
(g) Legal heirs/Guardian:
(i) Name (ii) Relationship (iii) Age (iv) Address (v) Contact No. 51. Injury Cases: (a) Name and address of injured (b) Age (c) Gender (d) Education (e) Occupation (f) Income (monthly)
(g) Details of family/dependents of the victim.
(h) MLC No.
(i) Nature of injuries
(j) Name of hospital(s) where injured treated?
(k) Whether victim refused medical treatment
(l) Period of hospitalization
(m) Period of treatment
(n) Whether treatment continuing
(o) Name, address and contact number of the doctor(s) who treated the injured
(p) Whether injured underwent any surgery(s)? If so,give particulars?
(q) Whether suffered any permanent disability? If yes, give details
(r) Expenditure incurred on treatment, conveyance, special diet, attendant etc. Give details, if available
(s) Whether the injured got reimbursement of medical expenses from his employer or under a mediclaim policy. Give details, if available
(t) Whether the injured provided cashless treatment by the Insurance Company? Give details, if available
52. Any other relevant information PART - VIII APPARENT CONTRIBUTING CIRCUMSTANCES
53. Driving without valid driving licence
54. Driving while disqualified
55. Learner driving without supervision
56. Vehicle not insured
57. Driving a stolen vehicle
58. Vehicle taken out without the consent of the owner
59. Driving dangerously or at excessive speed
60. Under influence of liquor or drugs. Give quantity/parameters/ recovery, if available
61. Dangerously loaded vehicle
62. Parking on the wrong side of the road
63. Parking at prohibited places
64. Non-observance of traffic rules
65. Poorly maintained vehicle
66. Fake/forged driving license
67. Previous conviction(s)/past history of bad driving
68. Driving Aggressively:
(a) Jumped red light
(b) Abrupt braking.
(c) Neglected to keep to the left of the road
(d) Driving criss-cross
(e) Driving too close to the vehicle in front
(f) Persistent inappropriate attempts to overtake
(g) Cutting in after overtaking
(h) Racing/competitive driving
(i) Crossing speed limit
(j) Disregarding any warnings
(k) Driving on the wrong side
(l) Overtaking where prohibited
(m) Driving with loud music
(n) Improper reversing
(o) Improper passing
(p) Improper turning
(q) Driving in no entry hours
(r) Not slowing down at crossing/road junction
(s) Turning without indication
(t) Not respecting stop sign on road surface (u) Not respecting right of way to pedestrian
(v) Using mobile phone while driving
69. Irresponsible behavior:
(a) Failing to stop after accident
(b) Ran away from the spot after leaving the vehicle
(c) Destruction or attempt to destroy the evidence.
(d) Falsely claiming that one of the victims was responsible for the accident
(e) Trying to throw the victim off the bonnet of the vehicle by swerving in order to escape
(f) Causing death/injury in the course of dangerous driving post commission of crime or chased by police in an attempt to avoid detection or apprehension.
(g) Offence committed while the offender was on bail.
(h) Misled the investigation
(i) Post accident road rage behaviour, give details.
70. Any other contributing factor PART IX OTHER OFFENCES COMMITTED AT THE SAME TIME
71. (a) Sections 62/288- Driving without license
(b) Sections 65/288- Driving by minor
(c) Sections 62/288 - Allowing unauthorized person to drive
(d) Sections 104/294- Without fitness
(e) Sections 154/295 - Without permit
(f) Sections 201 & 202/299- Over speed
(g) Sections 215/304- Over loading
(h) Sections 222/286- Jumping red light
(i) Sections 222/286- Violation of mandatory signs (One way, No right turn, No left turn)
(j) Sections 210/286- Improper obstructive parking
(k) Sections 229/305- Without insurance
(l) Section 194 & 195/308 - Not using seat belt
(m) Section 206/300- Violation of "No overtaking"
(n) Section 286/CMVR 105- Without light after sunset
(o) Section 324- Misbehaviour with police officer
(p) Section 300- Driving dangerously
(q) Section 307- Using mobile phone while driving
(r) Section 208/301- Drunken driving/under influence of drugs
(s) Any other offence PART - X RELEVANT DOCUMENTS TO BE ATTACHED
72. First Information Report
73. Site plan in terms of Clause 15
74. Photographs of the scene of accident from all angles.
75. Photographs of all the vehicles involved in the accident from all angles
76. Photograph and specimen signature of the driver(s) of the offending vehicle(s)
77. Photograph and specimen signature of the owner(s) of the offending vehicle
78. Mechanical Inspection Report in terms of Clause 18
79. Driving license of the driver
80. Proof of employment of driver such as appointment letter, salary slips, duty register etc.
81. Registration certificate of the offending vehicle(s)
82. In case of transfer of vehicle, sale documents, possession letter or any other document relating to transfer, if any
83. Insurance Policy of the offending vehicle(s)
84. Permit (for commercial vehicle)
85. Fitness Certificate (for commercial vehicle)
86. Report under Section 173 Cr.P.C.
87. Statements of the witnesses recorded by the police
88. Scientific report, if the driver was under the influence of liquor/drugs
89. In case of Death
(a) Post Mortem Report
(b) Death certificate
(c) Photograph and proof of the identity of the dead (d ) Proof of age of the deceased which may be in form of :
(i) Birth certificate
(ii) School certificate
(iii) Certificate from gram panchayat (in case of illiterate)
(e) Proof of Occupation and income of the deceased which may be in form of :
(i) Pay slip/salary certificate for salaried employees.
(ii) Bank statements of the last six months.
(iii) Income Tax Returns
(iv) Balance Sheets
(g) Proof of the legal representatives of the deceased
(h) Photographs, specimen signatures attested by the bank and identity proof of the legal representatives of the deceased
(i) Treatment of the deceased with name and address of the bank
(j) Bank Account no. of the legal representatives
90. In case of Injury
(a) MLC
(b) Multi angle photographs of the injured
(c) Photographs, specimen signatures attested by the bank and identity proof of the injured
(d) Proof of age of the injured which may be in form of :
(i) Birth certificate
(ii) School certificate
(iii) Certificate from Gram Panchayat (in case of illiterate)
(e) Proof of occupational income of the injured at the time of the accident which may be in form of:
(i) Pay slip/salary certificate for salaried employees.
(ii) Bank statements of the last six months of the deceased.
(iii) Income Tax Returns
(iv) Balance Sheets
(f) Treatment record, medical bills and other expenditure - In case of long term treatment, the SHO/IO shall also record the details so that the claimant may furnish documents before the Claims Tribunal.
(g) Disability certificate
(h) Proof of absence from work where loss of income on account of injury is being claimed, which may be in the form of:
(i) Certificate from the employer
(ii) Extracts from the attendance register
(i) Proof of reimbursement of medical expenses by employer or under a Mediclaim policy, if taken
91. Any other relevant document(s) VERIFICATION Verified at on this of , that the contents of the above report are true and correct and the documents mentioned in Part X have been verified.
Station House Officer (Name and Stamp) Assistant Commissioner of Police (Name and Stamp) SCHEDULE - V FORMAT OF INTIMATION OF THE ROAD ACCIDENT BY THE INVESTIGATING OFFICER TO THE CLAIMS TRIBUNAL AND THE INSURANCE COMPANY
1. FIR No, date and under section
2. Name of the Police Station
3. Date, time and place of the accident
4. Nature of the accident:
(a) Whether resulted in death or injurty or both?
(b) Number of persons injured/died
5. Name and address of the injured/deceased
6. Registration of the vehicle(s) involved in the accident
7. Name, address and contact no. of the owner of the offending vehicle(s)
8. Name, address and contact no. of the driver of the vehicle(s)
9. Insurance Policy Number
10. Period Of Insurance Policy
11. Issued by (Give name and address of the Insurance Company
12. Name and contact no. of the investigating officer S.H.O./I.O.
Enclosed- Copy of the FIR SCHEDULE - VI COMPLIANCE REPORT OF THE PROVISIONS TO BE MENTIONED IN THE AWARD The table to be incorporated in the award of the Motor Accident Claims Tribunal:
1. Date of the accident
2. Date of intimation of the accident by the Investigating Officer to the Claims Tribunal
3. Date of intimation of the accident by the Investigating Officer to the Insurance Company
4. Date of filing of Report under Section 173 Cr.P.C.
before the Metropolitan Magistrate.
5. Date of filing of Detailed Accident Information Report (DAR) by the Investigating Officer before Claims Tribunal.
6. Date of service of DAR on the Insurance Company
7. Date of service of DAR on the claimant(s)
8. Whether DAR was complete in all respects?
9. If not, deficiencies in the DAR
10. Whether the police has verified the documents filed with DAR?
11. Whether there was any delay or deficiency on the part of the Investigating Officer? If so, whether any action/ direction warranted?
12. Date of appointment of the Designated Officer by the Insurance Company
13. Name, address and contact number of the Designated Officer of the Insurance Company
14. Whether the Designated Officer of the Insurance Company submitted his report within 30 days of the DAR?
15. Whether the Insurance Company admitted the liability? If so, whether the Designated Officer of the Insurance Company fairly computed the compensation in accordance with law
16. Whether there was any delay or deficiency on the part of the Designated Officer of the Insurance Company? If so, whether any action/direction warranted?
17. Date of response of the claimant(s) to the offer of the Insurance Company
18. Date of the award
19. Whether the award was passed with the consent of the parties?
20. Whether the claimant(s) was/were examined at the time of passing of the award to ascertain his/their financial condition?
21. Whether the photographs, specimen signatures, proof of residence and particulars of bank account of the injured/legal heirs of the deceased were taken at the time of passing of the award?
22. Mode of disbursement of the award amount to the claimant(s)
23. Date for compliance of the award SCHEDULE - VII Take Second Schedule of the Motor Vehicles Act, 1988 subject to the correction of the multiplier and increase of minimum cap from Rs.40,000/- to Rs.1,00,000/- (refer para 21.19 above.)
23. Mr. Sanjay Jain, learned ASG, submits that he shall bring the suggestions of this Court to the notice of the concerned authorities.
24. This Court appreciates the assistance rendered by Mr. Anup J. Bhambhani, learned Amicus Curiae and Mr. Kanwal Chaudhary, Advocate.
25. Two copies of this order be given dasti to the learned ASG under the signatures of Court Master. Copies of this order be also given dasti to the learned amicus curiae and Mr. Kanwal Chaudhary under signatures of the Court Master.
26. List for further consideration on 14th November, 2014.
J.R. MIDHA, J.
NOVEMBER 07, 2014 rsk/dk