settlement of motor accidents claims with special reference to kerala

434 Pages·2013·9.13 MB·English

by  Radhakrishnan Nair K

SETTLEMENT OF
(I ­
MOITOR A5CCIDENTS “CLAIMS
WITH SPECIAL REFERENCE
-\_"
T(_) KERALA
Thesis Submitted By
K. FIADHAKRISHNAN NAIR
For the Degree of
Doctor of Pbflosophpg
Facufip of Law
COCI'lIN UNIVERSITY OF SCIENCE AND TECHNOLOGY
COCHIN - 682 022
MAY ‘I995
nEc;gRAT10N
I hereby declare that the thesis entitled "SETTLEMENT OF MOTOR ACCIDENTS
CLAIMS WITH SPECIAL REFERENCE T0 KERALA" is the record of original work
carried out by me under the guidance and supervision of
Dr.V.D.Sebastian, Professor (Retd.), Department of Law, Cochin
University of Science and Technology. This has not been submitted either
in part, or in whole, for any degree, diploma, associateship,
fellowship or other similar titles or recognition at any University.
r/I,“
Cochin 682022
llth May 1995 K. RADHAKRISHNAN NAIR
CERTIFICATE
This is to certify that the thesis entitled "SETTLEMENT OF MOTOR
ACCIDENTS CLAIMS WITH SPECIAL REFERENCE T0 KERALA" submitted by
Shri.K.Radhakrishnan Nair, for the Degree of Doctor of Philosophy is the
record of bonafide research carried out under my guidance and
supervision in the Department of Law, Cochin University of Science and
Technology. This thesis, or any part thereof, has not been to the best
of my knowledge submitted elsewhere for any other degree, diploma,
associateship, fellowship or other similar titles or recognition.
L
Cochin 682022 V-D-$eb&8ti8n
llth May 1995 Supervising Guide
ti )
PREFACE
Traffic Accidents have developed in to one of the great economic and
social problems of today. The paramount importance of rendering speedy
justice to the accidents victims has been the grave concern of all the
reformers. A widespread dissatisfaction with the traditional fault
system as a method of compensating the Victims or their representatives
for personal injuries or death has become apparent throughout the common
law world. A good number of studies have been undertaken and stream of
proposals for reform on piecemeal basis have also come out principally
focussing on the problem of compensation for road accidents. It should
by now be clear that in lieu of any piecemeal reforms within the tort
systems, a comprehensive reform of the whole system is what is needed
today. The idea of selecting this topic originally emanated from purely
practical and personal experience as a practitioner in law of damages.
On my joining the General Insurance Industry in 1987 as a law officer,
it was felt that an analysis of the extent of interaction between the
Insurance and the fault system would be helpful also for the specific
purpose of expeditious settlement of Motor Accidents claims.
With a view to suggesting improvements in the existing system, effort
has been made to critically examine and review the existing system, the
piecemeal reforms already made and their impact on the national and
international developments. Although, the main attempt is to find out a
cheapest and a quickest mode of settlement of Motor Accidents Claims,
necessary attention has also been drawn to the importance of prevention
of accidents.
The existing machinery for getting compensation leads a victim to a
poignant situation. A switch over to Tribunal system from the ordinary
I ii’)
civil court jurisdiction since 1956 for adjudicating the claims cases
reaped no efficacious results. The appointment of a Motor Accidents
claim, Tribunal was to dispense with the inappropriateness of the
inherited judicial system and its alienation from the common people
coupled with intractable problem of delay and arrears resulting in
denial of justice.
Delay defeats equity. Justice delayed is justice denied. Long litigation
is beyond the financial capacity of the poor claimants. Similarly, the
Insurance Companies are also adversely affected in as much as the
administrative and legal costs are continuing to spiral out of control.
However, the reformers who seek to eliminate the problem of delay, being
an intractable concomitant of adjudication, are confronted with two
dangers. The first is the cynicism which accepts it as inevitable. The
second is an abandonment in the name of efficiency of those procedural
safeguards which protect the autonomy and worth of every individuals.
The present system of liability determination based on fault has got
practically many defects. Most accidents do occur suddenly and
unexpectedly. The details surrounding them can seldom be accurately
determined. A normally cautious driver could be held negligent because
an incorrect decision in the last split of a second results in an
accident. Further proof of negligence, an inevitable ingredient for
getting the compensation, becomes a difficult task on the plaintiff due
to various reasons. The possibility that either party to the accident
may be tempted to suppress or fabricate evidence to show that the other
party is at fault cannot be ruled out. In the result, the tort
system based on fault becomes an extremely expensive method. Therefore,
it is necessary to examine whether it is desirable to continue such a
(iii)
liability determination based on fault. If not, what must be the basis
for a change. An Empirical survey of cases decided by the Motor
Accidents Claims Tribunal of Ernakulam, Perumbavoor and Kottayam has
been done to evaluate the functioning of the Tribunal System. Besides,
the role of claimants, drivers, owners, and insurers has also been dealt
with in detail.
Just like fixing the liability, the most difficult part of the law of
damages is the fixation of the quantum. Having made a review of the
existing methods of computation, a modification of the statutorily
structured formula, which was loosely drafted with errors, omission and
anomalies, has been proposed.
An alternative to the existing System an alternative has been suggested
which it is hoped would be more indigenous, less cumbersome, socially
responsive administratively fair and in tune with the noble
ideals enshrined in the Directive Principles under Article 39 (A)
and 40 of the constitution. This is called peoples Court or Lok
Adalat. The importance of Lok Adalat and other supplementary media of
Jald Rahat Yojana, conciliatory courts and out of court and compromised
settlements through the existing tribunals has also been critically
examined. Having found a new basis of liability and devised a new
schedule next most important requirement is to have a machinery in order
to facilitate expeditious settlement of claims. The adjudicatory process
of the existing tribunal system has failed to deliver justice a
reorganisation of the system vesting with a dual function is worked out.
Over and above, the financial protection which is secured through third
party insurance has also been examined with a view to expand its
coverage on a first party loss insurance basis. It is hoped that the
(iv)
study has made a humble contribution to a field of legal regulation of
increasing importance.
I should not conclude this preface without expressing my indebtedness to
the Cochin University of Science and Technology for awarding me a Junior
Research Fellowship for the period of my full time -research and for
granting the required extension of the research period.
i
I express my sincere gratitude to the Oriental Insurance Co. Ltd., a
reputed subsidiary of the General Insurance Corporation, from which I
have been receiving sustenance and countenance since 1987.
In every respect, I owe a great debt to my guide Dr. V.D.Sebastian
S
Professor (Retd.) Department of Law, who has been the sole source of
1
inspiration, encouragement and guidance.
I am grateful too to Dr.P.Leelakrishnan, Dr. N.S.Chandrasekharan and
Dr.K.N. Chandrasekharan Pillai, Professors, Faculty of Law CUSAT.
I must express my thanks to the Library Staff of the Department of Law,
Indian Law Institute, Delhi, High Court of Kerala.
My thanks are due to my wife Smt. Krishnamma, Lecturer in Commerce,
N.S.S.College, Nemmara, who helped me in comparing and correcting the
thesis.
My thanks are also due to Petcots Computer Copy Centre, Ernakulam for
neatly taking Computer prints.
CONTENTS
PAGE NOS.
I .­
PREFACE IV
1 _
CHAPTER I INTRODUCTION 15
II
CHAPTER LAW RELATING T0 SETTLEMENT OF MOTOR
16 —
ACCIDENTS CLAIMS: PAST & PRESENT 42
III
CHAPTER PRINCIPLE OF LIABILITY FIXATION ­
43 —
A JURISPRUDENTIAL HOME WORK 95
CHAPTER IV "MOTOR ACCIDENTS CLAIMS TRIBUNAL"
THE STATUTORY MACHINERY FOR SETTLEMENT
96 —
OF MOTOR ACCIDENTS CLAIMS 126
127 —
CHAPTER V THE ROLE OF CLAIMANTS AND THEIR COUNSELS 170
171 —
CHAPTER VI ROLE OF DRIVER AND OWNER 223
CHAPTER VII ROLE OF INSURER 224 — 258
CHAPTER VIII QUANTUM OF COMPENSATION 259 — 303
CHAPTER IX INTRODUCING A NEW SCHEDULE OF
304 —
COMPENSATION 334
CHAPTER X SETTLEMENT OF MOTOR ACCIDENTS CLAIMS
335 —
THROUGH COMPROMISE 361
CHAPTER XI COMPARITIVE POSITION IN SELECTED
362 —
COUNTRIES 379
CHAPTER XII CONCLUSIONS AND SUGGESTIONS 380 — 388
389 —
ANNEXURE 392
APPENDIX 393 — 395
396 ~
TABLE OF CASES 413
BIBLIOGRAPHY 414 — 426
1
CHAPTER 1
]LN1RODUCTIO§
Expeditious settlement of Motor Accidents claims assumes paramount
importance in view of its vital relevance to social justice. Traffic
Accidents have developed into one of the great economic and social
problems of todayl. The accident toll on our road traffic is increasing
at an alarming ratez. Though India's Motor Vehicle population is only
1% (one percent) of the World's, her share of World road traffic
accidents is 6% (six percent). There is an accident every minute in the
country and every ten minutes one person dies of them3. More than eight
lakh people have died in road accidents after independence, over 50% of
them in the last decade alone. Road accident rates and resultant
fatality rates in India are rising by 5% and 10% respectively per annum.
The problem of traffic accidents in Kerala is still more serious as
accidents in Kerala have increased at a faster rate than in many other
parts of the country. In the year 1958 only 1581 accidents were
registered which have increased to 4214 in 1969, 7064 in 1980 and 11,794
in 1984. Similarly the number of persons involved in accidents have gone
1 8§th Law Commission Report on claims for compensation under chapter
8Uof the Motor Vehicles Act, 1939;“p.8 (1980). “VT If
2 Mahesh chand "Accident Scenario in India with special reference to
Kerala" A Study Report by National Transportation WPlanning Wand
Research Centre) Trivandrum (NATPAC)
3 §oad Safety Digest, Vol. 2 No.4 (1992) (L.P.A)
The motor" vehicle population in India has tripled in the first
eight years of the last decade. In 1989 there were 106 lakh two
wheelers alone consisting of 63.6% of the total national motor
vehicles population.
2
upto 17,799 in 1987 from 11097 in 1980 and 4800 in 1969. In the year
1958 only 1914 persons were involved in accidents. The number of persons
killed in road accidents has increased consistently from 196 in 1958-59
to 1517 in 1987. The trend in number of road accident injuries is also
quite alarming with 16282 injuries in 1987, compared to 9913 in 1980,
4300 in 1969 and only 1718 in 1958. Accident situation on National
Highways and urban roads has also reached alarming proportions. National
Highways in Kerala, which account for less than one percent of road
length, accounted for 18 percent of accidents. Three Corporations, viz.
Trivandrum, Cochin and Calicut registered about 25 percent of road
accidents in Kerala.
The causes and characteristics of road accidents differ greatly
between those in a developing country like India and the ones peculiar
to developed countries mainly in the west. This is so because of the
vast differences that exist in terms of economic conditions, number and
types of vehicles on the road, traffic laws and their enforcement. All
these obviously influence the road environment of each particular
country4. In Kerala, vehicular density is extremely high compared to
other states. There are 2441 vehicles per one lakh population and 1882
vehicles per 100 sq.km. The all India figures in comparison are only
2772 and 583 respectively. Ernakulam leads in the number of vehicles as
well as accidents. It also leads in the number of newly registered
vehicles joining the traffic stream.
4 lg. at. p.4.