[chevyman]

Dear BHPians,

This post is regarding an accident my father had met with in March 2013, and the following legal troubles we are ensnared in. I need your advise.

I will make the post crisp for easy comprehension.

Accident occurred on March 30, 2013, car: Maruti 800, driver: my father, total passengers: 2. On the co-passenger's seat, my father's colleague (sub-ordinate) was seated.

They both had completed official work in Hyderabad and were on the way back to their office in Khammam.
Approximately at 1:30 PM, near Narketpally (between Hyderabad and Vijayawada), the car lost control due to a swerving manoeuvre and fell off the highway. My father's colleague died on the spot, my father survived with injuries.

The deceased person's (Mr. Rao) family has filed a case under Sec. 304 A on my father. They have also filed another insurance case in insurance tribunal.

Car's insurance had expired a few days before the accident. Car is owned by my brother-in-law.

Mr. Rao's wife (encouraged by her relatives) has filed an insurance claim of Rs. 50 lakhs. Since the car insurance had expired, will my father have to pay that amount? Already a part of his retirement benefits (Govt. employee, retired in January 2014) have been blocked due to that. Since the deceased person himself was a Govt employee and was on official duty, can my father be freed of the liability?

Please throw light on this issue and advise me. I am sure many people on Tbhp are well versed with insurance related issues.

Request to mods: I couldn't find a more appropriate thread for this post, if needed kindly move to appropriate thread. Thanks.

[mpksuhas]

Chevyman, you can check this thread for details.

[sudev]

This is sad.

IMHO unless deliberate act of criminality and intent is proved there could be no case under 304A

As far as civil liability is concerned you will again have to contest this in civil court that there was no negligence. I am not sure of the liability or case law on similar issue. Consult a good lawyer.

Lastly when was the case instituted? The accident took place in March 2013. Could it be contested on delay?

[chevyman]

Originally Posted by sudev

Lastly when was the case instituted? The accident took place in March 2013. Could it be contested on delay?

They filed for the claim in Motor Accidents Claims Tribunal and the court ordered to withhold a part of my father's retirement benefits. This order was issued on 27th January 2014. We are contesting against this order.

[zenren]

Originally Posted by chevyman

The deceased person's (Mr. Rao) family has filed a case under Sec. 304 A on my father. They have also filed another insurance case in insurance tribunal.

Car's insurance had expired a few days before the accident. Car is owned by my brother-in-law.

Mr. Rao's wife (encouraged by her relatives) has filed an insurance claim of Rs. 50 lakhs. Since the car insurance had expired, will my father have to pay that amount? Already a part of his retirement benefits (Govt. employee, retired in January 2014) have been blocked due to that. Since the deceased person himself was a Govt employee and was on official duty, can my father be freed of the liability?

Sorry to hear about the accident. Here is my take on the whole issue. Apologies in advance if I sound a little impolite as I've been trying to look at it objectively from a third person view.

Let us forget about the expired insurance for a minute since that would in no way change whether the victim is eligible for compensation. Technically, any injury or death in a motor accident is eligible for compensation, especially if the victim was in no way responsible for the accident. Considering your father's colleague who passed away was a passenger in the car and was in no way responsible for the accident, his family is eligible for compensation in this regard.

The compensation needs to be paid by the insurance company with whom the car is insured. In case of an expired policy or a situation that voids the insurance (even in case of policy still being valid) like the driver not in possession of a valid license, the owner of the vehicle is liable to pay the compensation. Hence the driver (your father) and the owner (your brother-in-law) are liable to pay the compensation. It is not victim's fault that the car didn't have a valid insurance and hence it shouldn't affect his family in any way when it comes to the compensation. The mistake that can be attributed against your father is that he violated the rule by taking a car without a valid insurance on the road. The reason we have that rule is to ensure that a victim doesn't suffer since the driver/owner is not able to compensate adequately as determined by the tribunal.

Coming to the amount asked by the victim's family, it is again determined by the claims tribunal regarding the compensation that needs to be awarded. In most cases, the tribunal would bring down this amount to a much lower amount, depending on how good your lawyer is. However, most cases get settled after years and the compensation would also have an interest component that could be as big, if the case drags on for years. Please note that the MACT courts are unlikely to sympathize with the expired insurance and hence it might not be easy for your lawyer. Ensure you try to get a very good lawyer to get you out of the mess. Some of the justifications for the 50 lakhs like the loss of future income to the family could be brought down if the government has policy in place to handle death of an employee while in service.

From my understanding, your father and brother-in-law would be made liable to pay compensation, though the amount might be lower than what they filed for.

Originally Posted by sudev

IMHO unless deliberate act of criminality and intent is proved there could be no case under 304A

Isn't 304A referring to "causing death by negligence"?

From my understanding, if there is no deliberate act of criminality and intent, it wouldn't qualify for 302 but could still qualify for 304A if it can be established that there was negligent or rash driving involved. I'm not sure if it follows "guilty unless proven innocent" or the "innocent unless proven guilty" track. If it is latter, the victim's family would need to prove the negligent driving and an expired insurance alone might not be sufficient to do so. If it was a high speed crash, it could be tried under 304A.

Chevyman,
Does the FIR for the accident mention anything about rash driving or high speed driving? If there is no indication of rash or negligent driving as per the FIR, I don't think 304A would stand.

[chevyman]

Originally Posted by zenren

From my understanding, your father and brother-in-law would be made liable to pay compensation, though the amount might be lower than what they filed for.

Thanks for the detailed post. I have 2 questions.

1. Is there no difference between 3rd party accident and this case? I mean if my father was driving rashly and killed a pedestrian, that would be a more fair case to claim compensation. In our case, this person was traveling in my father's personal car on official work, when he actually had to arrange his own conveyance. In a way my father just gave him lift. So how different is this from 3rd party accident related death?

2. If the claims tribunal decrees us to pay a certain amount, but my father and brother-in-law dont have sufficient income sources or property, what will be done in such a case?

[zenren]

Originally Posted by chevyman

Thanks for the detailed post. I have 2 questions.

1. Is there no difference between 3rd party accident and this case? I mean if my father was driving rashly and killed a pedestrian, that would be a more fair case to claim compensation. In our case, this person was traveling in my father's personal car on official work, when he actually had to arrange his own conveyance. In a way my father just gave him lift. So how different is this from 3rd party accident related death?

2. If the claims tribunal decrees us to pay a certain amount, but my father and brother-in-law dont have sufficient income sources or property, what will be done in such a case?

I'm not a legal expert but here are my 2 cents.

Giving a lift doesn't entitle the owner/driver to do any harm to that person, let alone cause death. Usually, such incidents would be different from the third party accident because the victim might belong to the same family or a close friend and they wouldn't pursue legal action. Since they've already taken the legal route, this might not be too different from a third party accident case. Looking back at the situation, his family would certainly insist that he was in a better position going there by his own means rather than going with your father. Hence it might not matter to bring up such an argument.

Considering the person was your dad's subordinate employee, they could even argue in court that he couldn't say "no" to his superior without a risk of being impolite, even if he didn't want to go with your dad. So he might not really have had a choice when your father offered him a ride. I don't know about your dad's driving style but so is the case with the judge. Considering how lawyers can twist the facts, these kind of arguments should be expected if this point gets dug deeper and it could put your father in a spot where it might be difficult to prove otherwise.

I'm not too sure about question #2 but I think it could get tangled with our laws on bankruptcy protection in the country.

[chevyman]

Originally Posted by zenren

Giving a lift doesn't entitle the owner/driver to do any harm to that person, let alone cause death.

My father himself had his life jeopardized, he survived miraculously. So it sounds absurd that my father drove rashly to kill himself and his co passenger. This is an "accident" and not even a 3rd party damage. Its really unfair to target my father as if he deliberately drove rashly n killed his co-passenger but saved himself.

[CrAzY dRiVeR]

Sorry if I am being too direct here, but your BIL is the responsible person to pay up here, as per Section 140 and 146 of the motor vehicles act. But 50 lakhs? Don't think so.

Section 140: Where death or permanent disablement of any person has resulted from a road accident, the owner of the vehicle involved shall be liable to pay compensation in respect of such death or disablement irrespective of his/her fault. The compensation for death shall be Rs. 50,000/- and for permanent disablement Rs. 25,000/-.

In such claims, the claimant shall not be required to plead and establish that the death or permanent disablement was due to any wrongful act, neglect or default of the owner of the vehicle involved. The claim shall not be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement, the claim has been made. Besides the owner of the vehicle, the Insurance Company is also liable under this section.

Section 146: No vehicle shall be used on the road without proper Insurance Certificate. The responsibility lies with the owner of the vehicle.

[chevyman]

Originally Posted by CrAzY dRiVeR

Section 140: Where death or permanent disablement of any person has resulted from a road accident, the owner of the vehicle involved shall be liable to pay compensation in respect of such death or disablement irrespective of his/her fault. The compensation for death shall be Rs. 50,000/- and for permanent disablement Rs. 25,000/-.

Does this section apply for person who got killed by sitting inside the vehicle which met accident?

[shashank.nk]

I'm not a legal expert but we had a similar experience,albeit our car was comprehensively insured.

A Bank AGM on an Activa cut across from the left hand side and though my father braked the vehicle skidded and hit the activa at 20-30kmph or so. No major injuries except for a fracture which was attended to at a hospital,he insisted on filing a case and a SI booked my father for negligent driving,though it was the two-wheelers fault. Both vehicles were seized and our car spent a night at the station.

So after a few days we got a legal notice saying that my dad had caused serious injury due to negligent driving and with injuries,loss of income etc that person had claimed 25 lakhs as compensation. My father went to court once and he never had to go again. The insurance co. is fighting the case with the claimant.We consulted a lawyer who told us that its normal to claim such high amounts and settlement is usually made for far lesser amounts.

In your case,you will need to hire a good lawyer and fight just like the insurance company is doing for us. Compensation settlement is a civil case and can get dragged for years. This incident occurred in 2008 and the case is still going on,so settlement if any, won't mean an immediate cash outflow.

Alternatively,do try a out-of-court settlement if the other party is willing and terms are mutually acceptable.

[chevyman]

Originally Posted by shashank.nk

Alternatively,do try a out-of-court settlement if the other party is willing and terms are mutually acceptable.

We tried this, but they are not willing to settle for anything less than Rs. 25 lakhs, even though they are getting huge compensation from Govt. and the deceased person's wife has been offered a Govt. job. I think we need to hire a more competent lawyer. The current one has not done anything to soothe our nerves.

[zenren]

Originally Posted by chevyman

My father himself had his life jeopardized, he survived miraculously. So it sounds absurd that my father drove rashly to kill himself and his co passenger. This is an "accident" and not even a 3rd party damage. Its really unfair to target my father as if he deliberately drove rashly n killed his co-passenger but saved himself.

Apologies if I sounded a little extreme. I was not specifically referring to your father's accident but how a general rule would have to be drafted and interpreted, based on your highlighted point that there should be a special treatment because your father was giving his colleague a free ride. Passenger getting a lift would be similar to a passenger in a taxi, if we ignore the "free" part. Wouldn't the taxi driver be held responsible for anything that happens to the passengers in his taxi while he is driving?

In your specific case, your father might have been driving in a reasonable manner and the accident might have been caused by someone else's fault. However, as long as your father cannot trace the real person who caused the accident and file case against them proving their involvement, responsibility of the accident would reside with him. That is the sad truth.

In the eyes of the law, I don't think there is a difference between someone sitting inside the car versus some on the outside. Anyone other than the driver/owner and probably their families of the vehicle are 3rd party from what I know.

Again, all these are covered under different headers of the vehicle insurance. Though unfortunate, it is the steep price that comes with the carelessness of a vehicle owner in not renewing the insurance on time.

Originally Posted by chevyman

1. Is there no difference between 3rd party accident and this case? I mean if my father was driving rashly and killed a pedestrian, that would be a more fair case to claim compensation. In our case, this person was traveling in my father's personal car on official work, when he actually had to arrange his own conveyance. In a way my father just gave him lift.

[ani_meher]

The compensation will be paid by the owner of vehicle, not the driver. It will be decided based on various factors, such as age of the deceased, his current and expected loss of income etc. It will not be capped at 50k.

You can try settling out of court, but the lawyers get % of compensation awarded, so I think settlement chances will be low.

[chevyman]

Originally Posted by zenren

Apologies if I sounded a little extreme.

No sir, my frustration is not directed at you but the claimants who are adopting the said logic.