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in respect of the death of any person resulting from a hit and run motor accident, a fixed sum of [twelve thousand and five hundred rupees].
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In respect of grievous hurt to any person resulting from a hit and run motor accident, a fixed sum of[twelve thousand and five hundred rupees].
(4) the provision of sub- section (1) of Section 166 shall apply for the purpose of making applications for compensation under this section as they apply for the purpose of making applications for compensation referred to in that sub- section.
SECTION 162
Refund in certain cases of compensation paid under Section 161.
- The payment of compensation in respect of the death of, or grievous hurt to, any person under Section 161 shall be subject to the condition that if any compensation ( hereafter is this sub- section referred to as the other compensation) or other amount in lieu of or by way of satisfaction of claim for compensation is awarded or paid in respect of such death or grievous hurt under any other provision of this Act or any other law or otherwise so much of the other compensation has already been paid under Section 161 or an application for payment of compensation is pending under that section, and such tribunal, court or other authority shall,-
- if compensation has already been paid under Section 161, direct the person liable to pay the compensation awarded by it to refund to the insurer, so much thereof as is required to be refunded in according with the provision of sub-section 91);
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I any application for payment of compensation is pending under Section 161 forward the particulars as to the compensation awarded by it to the insurer.
Explanation- For the purposes of this sub-section, an application for compensation under Section 161 shall be deemed to be pending –
- if such application has been rejected , till the date of the rejection of the application, and
(ii) if any other case, till the date of payment of compensation in pursuance of the application.
SECTION 163
Scheme for payment of compensation in case of hit and run motor accidents.
- The Central government may, by notification in the Official Gazette, make a scheme specifying, the manner in which the scheme shall be administered by the General Insurance Corporation, the form, manner and the time within which applications for compensation may be made, the officers or authorities to whom such applications may made, the procedure to be followed by such officers or authorities for considering and passing orders on such applications, and all other matters connected with, or incidental to, the administration of the scheme and the payment of compensation.
- A scheme made under sub-section (1) may provide that-
- a contravention of any provision thereof shall be punishable with imprisonment for such term as may be specified but in no case exceeding three months, or with fine which may extend to such amount as may be specified but in no case exceeding five hundred rupees or with both;
- the powers, functions or duties conferred on imposed on any officer or authority by such scheme may be delegated with the prior approval in writing of the Central government, by such officer or authority to any other officer or authority;
- any provision of such scheme may operate with retrospective effect from a date not earlier than the date of establishment of the solatium fund under the Motor Vehicles Act, 1939 ( 4 of 1939), as it stood immediately before the commencement of this Act;
it stood immediately before the commencement of this Act;
Provided that no such retrospective effect shall be given so as to prejudicially affect the interests of any person who may be governed by such provision..
SECTION 163-A
Special provision as to payment of compensation on structured formula basis.
- 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 or 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 indicated in the Second 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 ( 8 of 1923).
- 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.
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The central government may, keeping in view the cost of living by notification I the Official Gazette, from time to time, amend the Second Schedule.
SECTION 163-B
Option to file claim in certain cases
Where a person is entitled to claim compensation under Section 140 and Section 163-A , he shall file the claim under either of the said sections and not under both.
The adjudicating authorities in all cases would be Motor Accident Claims tribunals (MACT). The Government is empowered to revise the schedule keeping in view the changes in the level of cost of living.
Section 163 (A) and163 (B) are newly added by the Amendment Act:
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This Section contains special provision as to payment of compensation on “structural formula basis”. This is a new provision for payment of compensation to road accident victims as per determined formula. The amount of compensation payable to claimant is calculated in a tabular form and shown in the Second schedule which appears as an annexure to the amendment Act, 1994 ( effective from 14th November 1994).
- In case of fatal accidents a table of compensation is provided showing the amounts payable depending on the age of the victim and the multiplier applicable. The amount of compensation so arrived at in case of fatal accident claims is reduced by one-third n consideration of the expenses which the victim would have incurred toward maintaining himself had he been alive.
- Under the schedule, the amount of such compensation shall not be less than a specified amount (currently Rs. 50,0000/-).
-
Besides the amount of compensation outlined above for fatal cases, the schedule also indicates;
- General Damages of specified amounts payable in case of death for;
- Funeral expenses.
- Loss of consortium, if beneficiary is the spouse.
- Loss of estate.
- Medical expenses, that is, actual expenses incurred before death, supported by bills/ vouchers, not exceeding a specified amount.
- General Damages o specified amount are payable in case of injuries and disabilities for:-
- Pain and suffering for grievous and non-grievous injuries.
- Medical expenses, that is , actual expenses incurred supported by bills/voucher not exceeding, as one time payment, specified amount.
- Disability in non-fatal accidents:
Compensation for loss of Income, if any , for actual period of disablement not exceeding 52 weeks, PLUS either of the following:
- In case of payment total disablement, the amount payable shall be arrived at by multiplying the annual loss of income by the multiplier applicable to the age on the date of determining the compensation, or
- In case of permanent partial disablement, such percentage of compensation which would have been payable in the case of permanent total disablement as specified in the above item.
- The Schedule also specifies notional income of non- earning persons.
In any claim for compensation under this Section, 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, a due to any wrongful act or neglect or default of the owners of the vehicles concerned or of any person.
Thus, the compensation mentioned in the Schedule shall be payable on the basis of “ No Fault”. However, the scheme is optional, and if the claimant feels that the amount prescribed in the schedule is not acceptable, a claim can be filled under the existing provisions, that is, under Section 166 of the Motor Vehicle Act.
In the case Guranna Vadi & others v. General Manager, Karnataka State Road transport Corporation and other the Karnataka high Court laid down the principles with respect to section 163- A based on the following queries:
1. Whether section 163- A of the Motor Vehicle Act, 1988 confers substantial or procedural rights to the claimant?
The Court stated that “Unlike section 140 under which the compensation is fixed, under section 163-A t is structured. Any law that pertains to and determines the measures of damage is a substantive law. It is more so when the damages so determined by the provision is to the exclusion of all rights of the parties finally. The determination of the rights under this section cannot be altered or affected by taking recourse to any other section in the Act as is the case with section140 of the Act where the compensation awarded can be set off against an higher compensation that a claimant could receive under Section 166.
2. Whether the claim under section 163-A of this Act is to be treated as interim or final?
The Court held that compensation received under section 163-A is final and not an interim compensation.
3. Whether section 163-A of the Act would be applicable to the Claims made in respect of the accidents which took place prior to its introduction, i.e., 14.11.1994?
The application of S. 163-A is prospective and not retrospective . The fact that the legislature reserved the right to amend the Section Schedule from time to time keeping in view the cost of living also manifests the intention of Parliament to give the provision only prospective effect from the date of the provision or the changed effected to tit come into force.
4. Whether a claim under section 163-A of the Act is tenable where the income of the victim was more than Rs. 40,000/- p.a. and where the actual medical expenses incurred is Rs. 15,000/-?
On this important question the court came to the far reaching conclusion that-
A claim application under section 163-A is not tenable if made by a person whose income exceed Rs 40,000/- p.a. But , in case the person with the higher income nationally brings down his income to Rs 40,000/- in order to present his claim under section 163- A the same can be permitted.
In a recent case, United India insurance Co. Ltd., v. Patricia Jean Mahajan & Ors, the Court considered the application of the multiplier method of awarding compensation. Though the court held that while the multiplier method is a safe guide in arriving at just compensation, it is permissible to deviate from the table provided in the Second schedule based on the facts of each case.
It may be mentioned that in above case while the multiplier was fixed at 10, the dependency income was compensation 26297 far above Rs 40,000 per annum.However this case was a claim under Section 166 of the Motor Vehicle Act 1988 and requires further analysis as to its implications in the future.
5. As to whether a claimant, during the pendency of the proceeding a the original or the appellate stage can amend his claim petition under section 166 as a petition under section 163-A of the Act?
The Court answered in the affirmative provided that the accident took place on or after 14.11.1994 when section 163-A and 163-B came into force , provided the claimant satisfies other conditions such as the income factor etc.mentioned in the second schedule.
Under Section 164 of the 1988 Act, the central government has now been empowered extensively to frame rules with regard to the implementation of the provision s of chapter XI of the Act. Wider power are given to the Central government who may now provide rules for the records to be maintained by insurers of policies of insurance issued under Chapter X(insurance against third party risks).
SECTION 163 (B)
When a person is entitled to claim compensation under section 140 and Section 163 (A), he shall file the claim under either of the said section and not under both.
The adjudicating authorities in all cases would be Motor Accidents Claims Tribunals (MACT). The Government is empowered to revise the Schedule keeping in view the changes in the level of cost of living.
SOME IMPORTANT LEGAL DECISION
1. The Bombay high Court has held that damages should be awarded to a pedestrian
Injured in an accident originating in a vehicle even if it is not in state of locomotion.
The High Court came to this conclusion while party allowing an appeal filed by the original insurance Co. Ltd. Against the order of the MACT awarding Rs. 47,175/- in damages to Suman Navanth Rajguru, widow of an accident victim and others. Their Lordships reduced the quantum of the award to Rs. 45,000/-.
Mr. N.A. Rajguru, a 21 year old cobbler was walking to his residence along the Sion –Trombay Road on May 27, 1979. When he sustained fatal injuries following the explosion of a tanker parked along the footpath outside Bharat Petroleum’s petrol pump, his body was found at a distance of ten feet from the tanker.
It was company’s contention that the Insurance Policy covered liability which may be incurred by the owner in respect of death to a third party, caused by or arising out of the use of a vehicle in a public place. During the material time, the vehicle was not ‘in use’ much less in a public place. As the accident did not occur when the vehicle was in a state of locomotion, but allegedly due to the bursting of the container containing petrol, the Company could not be held liable.
Their Lordship stated that generally a tanker does not burst into flames but if t did, then the owner of the vehicle could prima-facie be considered guilty of negligence. The cobbler had no reason to suspect that there was danger lurking in the vicinity nor was there ay suggestion of arson.
In the Court of the Motor Accident Claims Tribunal Delhi
Claim Petition No. _______
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________ … Petitioner
VERSUS
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________ … Respondent
Application under the Section 166 & 140 of the
Motor Vehicle Act 1988 for grant of Compensation
Sir,
1. Name & Father’s Name of the person
injured/dead (Husband’s Name in case
of married women & widow) :
2. Full address of the person injured/dead:
3. Age of the person injured/dead. :
4. Occupation of the person injured/dead:
5. Name & address of the employer of
the injured / dead. :
6. Monthly income of the person injured/
dead. :
7. Does the person in respect of whom
compensation is claimed pay income
tax? If so state the amount of the
income tax (to be supported by document) :
8. Place, date and time of accident :
9. Name & Address of Police Station in
whose jurisdiction the accident took
place & FIR was registered. :
10. Was the person in respect of whom
compensation is claimed traveling by
the vehicle involved in the accident ?
If so, give the name & place of starting
the journey and destination. :
11. Nature of the injuries sustained. :
12. Name & Address of the Medical
Officer/Practitioner, if any who
attended to the injuries. :
13. Period of treatment and expenditure. :
14. Registration No. & Type of vehicle
involved in accident. :
15. Name & address of the owner of
offending vehicle. :
16. Name & address of the driver of
offending vehicle. :
17. Name & address of the insurer of
the vehicle. :
18. Has any claim been lodged with
the owner/insurer, if so, with what
result. :
19. Name & address of the applicant. :
20. Relationship with the deceased /
injured. :
21. Title of the property of the deceased/
injured. :
22. Amount of compensation claimed. :
23. Any other information that may be
necessary and helpful in the disposal
of the case. :
24. Prayer
Petitioner
Verification:
Verified at Delhi on this the ________ day of _________ 200__ that the contents of the above application are true and correct to my knowledge and belief.
Petitioner
Following documents should accompany the petition:-
1. Copy of the FIR registered in connection with said accident, if any.
2. Copy of the MLC/Post Mortem Report/Death Report as the case may be.
3. The documents of the identity of the claimants and of the deceased in a death case.
4. Original bills of expenses incurred on the treatment along with treatment record.
5. Documents of the educational qualifications of the deceased, if any.
6. Disability Certificate, if already obtained, in an injury case.
7. The proof of income of the deceased/injured.
8. Documents about the age of the victim.
9. The cover note of the third party insurance policy, if any.
10. An affidavit in support of the above documents and detailing the relationship of the claimants with the deceased.
CASE ANALYSIS
Rita Devi (SMT) And others
v.
New India Assurance Co.Ltd. And Another
STATEMENT FO FACTS
- D was the driver of an autorickshaw owned by another person and registered as a public carrier vehicle for hire by passenger. It was insured with the respondent also.
- On 22-3-1995 some unknown person hired the autorickshaw but subsequently stole away the same and killed D.
- D’s legal representatives filed a claim petition under Section 163-a of the Motor Vehicle Act, 1988 claiming damages for the death of D caused during the course of his employment under the owner of the said autorickshaw as a death caused in an accident arising out of the use of Motor vehicle.
- The claims tribunal allowed the claim against the owner of the autorickshaw and also fastened legal & statutory liability on the insurer. The insurer, respondent herein, preferred an appeal before the High court which allowed the same on the ground that the case was one of murder & not of an accident.
QUESTION BEFORE THE COURT
Whether the insurance company is liable to pay compensation?
JUDGEMENT OF THE COURT
The owner of the vehicle was liable to compensate the death of the driver in money value. Since there was an agreement between the vehicle-owner & the respondent Insurance Company to compensate the employer of the vehicle with sum of Rs. 281500
RATIO
If the dominant intention of the Act of felony is to kill any particular person then such killing is not an accidental murder but is murder.
CONCLUSION
The compensation paid in hit and run motor accident are very less and according to me the amount of compensation paid should be raised so that the affected person feel satisfied with it any provision thereof shall be punishable with imprisonment for such term as may be specified but in no case exceeding three months, or with fine which may extend to such amount as may be specified but in no case exceeding five hundred rupees or with both; the powers, functions or duties conferred on imposed on any officer or authority by such scheme may be delegated with the prior approval in writing of the Central government, by such officer or authority to any other officer or authority;
BIBLIOGRAPHY
BOOKS REFFERED:
-
V.A.Pai & H. Ananthakrishnan (eds.), Motor Insurance (Insurance Institute of India, Mumbai,2003).
-
Motor Vehicle Act 1988 (Capital Law House, New Delhi, 2001).
JOURNAL REFFERED:
WEB SITES USED:
- MANUPATRA.COM
- WESTLAW.COM
- FINDLAW.COM
Kishore v. Chairman, Tribal Service Co-operative Society Ltd., A>I.R. 1988 M.P. 38 , at 41.
Earlier it was chapter VIII to the 1939 Act..
Section 146 of the 1998 Act corresponds to Sec. 94 of the 1939 Act..
Subs. By Act 54 of 1994, w.e.f. 14th November, 1994..
cited from Motor Vehicle Act 1988 at 115.
cited from Motor Vehicle Act 1988 at 116.
cited from Motor Vehicle Act 1988 at 117.
-
V.A.Pai & H. Ananthakrishnan (eds.),Motor Insurance( Insurance Institute of India, Mumbai,2003.