God forbid that you ever need to use the information in this thread, but if you do, I hope it will make things a bit simpler during your hour of need.
India has one of the highest number of road accidents in the world. Though the term
‘accident’ implies that there is no one to blame, more often than not, accidents are caused by rash and negligent driving and therefore the law requires that the wrongdoer must compensate the victim for the loss suffered.
In India, we have separate machinery for dealing with compensation claims involving motor accidents. Separate forums called Motor Accidents Claims Tribunals (MACT) have been set up under Motor Vehicles Act, 1988 to deal with compensation claims involving motor accidents.
Check out the following scenarios: Scenario 1:
Accident happens but victim is still alive.
In such a case, you will have to file an FIR (First Information Report). Laws are now strict and ANY hospital has to start emergency treatment for the victim (private or government hospital), even if you don't have an FIR yet. Once treatment has started, you may withdraw the complaint if you wish to do so.
You can claim compensation of upto Rs. 25,000/- from the Motor Accident Claims Tribunal (MACT) if you wish to do so. Procedure for the same will be explained later on.
Scenario 2:
Accident happens, victim is alive but passes away soon after in the hospital.
Here, you will have to file an FIR. You may have withdrawn the case, but after that as soon as the victim passes away, you will
HAVE TO file the FIR again. This is extremely important since you will need an NOC from the police station stating that the cops have no objection to you cremating / burying the body.
The cops will only issue the NOC if a post mortem is done. There is no way around this.
POST MORTEM RULES:(As far as I know)
If the victim passes away within 24 hours of the accident or 24 hours of being admitted to the hospital, you will have to get the post mortem done.
THERE IS NO OPTION. Do not try to fight against this. Cops will not budge. It is a protocol in India and in most of the other countries around the world. Once the post mortem is done, the coroner will issue you a cause of death certificate. You need to show this certificate to the police who will then issue you the NOC.
A list of coroner centers in your city is available on the internet.
If the victim passes away after 24 hours, then it is the prerogative of the hospital if they want to request for a post mortem or not. On their own discretion they can give a death certificate on their own. You can then take this certificate and show to the police for the NOC.
Once you get the NOC, you need to take that and the post mortem report / death certificate from the hospital to the crematorium. Based on this, they will let you cremate the body and issue a receipt to you.
After 15 days you can take this receipt to the local ward office to claim the official death certificate. You can request any number of copies when you collect the certificate and they will give it to you within 15-20 minutes.
PROCEDURES: Procedure for claiming compensation:
An application claiming compensation has to be made by:
- The person who has sustained the injury
- The owner of the property which has suffered damage
- The legal representative of the deceased
- An agent duly authorized by the injured person.
Accident victims, who are below 18 years of age, cannot file for compensation themselves; they have to go through their advocates. The application has to be made before the Claims Tribunal and no civil court has the power to entertain any question relating to any claim for compensation.
The claimant has to prove rash and negligent driving on the part of the respondent in order to be entitled for compensation.
Instances of negligent driving where compensation has been awarded:
- Overtaking without waiting for signal to overtake from the vehicle in front
- Infraction of traffic rules (not giving precedence to traffic moving uphill, not keeping to the proper side)
- Speeding
- Negotiating a curve without proper care (at high speed and on wrong side)
- Striking the vehicle from behind
If the victim was also negligent along with the respondent, then it is a case of contributory negligence. In such cases, the Tribunal will reduce the compensation to such an extent that it seems just and equitable to it having regard to the “claim shared in the responsibility for the damages”. Thus where a passenger in a bus was keeping his hand outside the window and the hand got injured because of the negligence of the driver, the compensation entitled to the passenger will be reduced because the injury would not have occurred had he been careful in not putting his hand outside.
An application can be made to the Tribunal under whose jurisdiction the claimant resides or carries on business or under whose jurisdiction the respondent resides or under whose jurisdiction the accident occurred. For example, where an accident occurs in Bangalore between a person residing in Delhi and a person residing in Mumbai, an application can be made before the Claims Tribunal in Bangalore, Delhi or Mumbai.
As soon as information regarding an accident involving death or bodily injury is reported to the police station, the police officer is required to forward such report to the Claims Tribunal within 30 days and the Claims Tribunal considers such reports as an application for compensation.
Interim compensation on the basis of ‘no fault’
If a person has died in an accident or has suffered permanent disability, the Act creates an obligation on the owner of the vehicle to pay an interim compensation fixed by the Act. He is not allowed to plead that he was not at fault or that the accident occurred because of negligence of the victim. Permanent disability means loss of sight of either eye, hearing of either ear, loss of any member or joint, permanent impairment of powers of any members or joint or permanent disfiguration of head or face. In case of death, the amount payable is Rs.50,000/- and in case of permanent disability, compensation payable is Rs.25,000/-. This amount cannot be reduced and is independent of the liability to pay compensation in a claim petition. Thus, even if ultimately the claim petition is dismissed, the interim compensation is not refundable. However, if the award made on the claim petition is higher than the interim compensation, the interim compensation already paid will be deducted. The claimant is not required to show that the death or permanent disability was caused due to fault or negligence of the owner; the owner is liable to pay the amount as long as death or permanent disability was caused as a result of an accident with his vehicle. For instance, if the car was stolen and driven by a disqualified person, and that person hits someone resulting in injuries, neither the insurance company nor the owner will be liable for there was no negligence. However, if it results in the death of third party, then the owner/insurer will be liable. The interim compensation will be awarded by the Tribunal though it is not specifically asked for in the claim petition.
Methods of calculation of compensation
After holding inquiry, the Tribunal will make an award determining the amount of compensation which appears to be just. The Tribunal takes into account the actual loss which arose out of the accident which includes hospital expenses, lost income during treatment period etc. In case of death, it is primarily the loss of dependency that determines the compensation amount. This is calculated using the multiplier method which is an exercise involving factors such as number of dependants, age of the deceased, nature of his profession, future prospects of the deceased, age of the claimants etc; and hence is not explained here. For instance in a case where a person aged 23, earning income of around Rs. 3,000/- per month, doing business met with an accident and died, the compensation of Rs. 4,17,500/- was given. Similarly in another case where an MBA graduate earning Rs. 18,000 per month died and Tribunal awarded an amount of Rs. 24,65,000/- though the Madras High Court found the amount to be exorbitant and reduced it later to Rs.15,14,000/-.
Where an accident victim is a housewife, the Tribunal will first do the evaluation of her gratuitous services and will arrive at a notional income. The compensation will be calculated on the basis of this notional income. In one of the latest judgment where a housewife suffered injuries, the court awarded a compensation of Rs.1,45,129/-.
In case of accidents involving death or permanent disability, the Act also provides for a structured formula for calculating compensation in its schedule. It is for the claimant to decide whether to claim compensation based on the formula given in the schedule. The advantage of opting for this procedure is that the claimant is not required to prove negligence or fault of the respondent and thus the liability of the owner is on
‘no-fault’ basis. However, the disadvantage is that the claimant cannot simultaneously claim the interim compensation (above, Rs.50,000/- in case of death and Rs. 25,000/- in case of permanent disability). Further, the structured formula in the schedule does not contemplate calculation of compensation for those earning above Rs.40,000/-.
Hit and run cases
A
‘hit and run’ motor accident means an accident involving a motor vehicle whose identity cannot be ascertained (for instance, a car hits a pedestrian and speeds away). In such cases, it is unfair to deny compensation to the pedestrian on the ground that the respondent cannot be identified. Therefore, the Act empowers the Central Government to make a scheme to pay compensation in such cases. Accordingly, a victim of a ‘hit and run’ accident can file an application before the Claims Tribunal claiming compensation and once the Tribunal has allowed the application, the General Insurance Corporation is liable to pay to the claimant a fixed compensation of Rs. 25,000/- in case of death and Rs. 12,500/- in case of grievous injury. Thus, the amount allowed under a hit and run case is meagre as compared to a regular claim petition.
ESSENTIAL DOCUMENTS: (VERY IMPORTANT)
You need to attach several documents along with your compensation claim:
- FIR copy
- PANCHNAMA copy (this is a list of damages that is drawn by cops in the presence of witnesses)
- MEDICAL REPORTS (in case of injury)
- POST-MORTEM REPORT or DEATH CERTIFICATE (in case victim has died and a legal heir is filing for compensation)
- RTO CERTIFICATE (showing name and address of owner and insurance particulars of vehicle/s involved in the mishap)
- PASSPORT-SIZE PHOTOGRAPH
- COURT-FEE STAMP
THE COSTS OF COMPENSATION:- Affix a court-fee stamp of Rs. 10 if the compensation you are claiming is less than Rs 5,000/-.
- Affix a court-fee stamp that is worth 0.25% of your claim if you are asking for compensation that is between Rs 5,001/- and Rs 50,000/-.
- Affix a court-fee stamp that is worth 0.5% of your claim if you are asking for compensation that is between Rs 50,001/- and Rs 100,000/-.
- Affix a court-fee stamp that is worth 1% of your claim if you are asking for compensation that is more than Rs 100,000/-; but the maximum fee that you have to pay is Rs 15,000/-.
To claim the compensation in case of hit and run cases, the applicant will have to make an application in
Form I along with discharge receipt in
Form II and an undertaking in
Form V to the chief inquiry officer, who could be a sub-divisional officer, tehsildar or any other officer in charge of revenue sub-division of the district or such other officer not below the rank of sub divisional officer or a tehsildar.
Keep all the medical bills, transport expenses due to expenditure, any special expenditure (e.g. if because of accident an individual loses one leg, then the bill for the artificial foot replacement; or if the accident makes the victim immobile then ask the doctor to specify that for rest of the life two attendants will be required to take care of the victim). In case of an accident resulting in death, one should annex proper documentation in terms of the income of the deceased.
If the victim is hit by a school bus, make sure the school bus is impounded. The rules for school buses are very strict. Ask the police if the school bus has a speed governor installed which limits the speed to 40-50 kmph and that the school bus is not more than 8 years old. Get the report from the RTO before releasing the school bus. Cops will pressurize you to let the school bus go but do not budge.
Sources: http://www.akosha.com TOI: How to file a Caim at the motor accident claims tribunal: March 19, 2008 | Citizen Services | Motor Accident Claims | www.karmayog.org
1st April 2011, 12:53
(61)
Thanks
I guess this would be one of the most important threads out here. I do hope friends with knowledge and experience share here. Though, I do wish no one has to use this information in his entire life, knowledge is the key.
