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Procedure for a Motor Accident Claim

2018-08-04 12:33:41
Procedure for a Motor Accident Claim

INTRODUCTION

In today's world, we can see the existence of various types of claims such as marital claims, personal claims, health claims, equity claims, insurance claims etc. In all these claims we have an accidental claim that has grown with the development in the present time.

Before going ahead, we should first understand the meaning of the accident. Accident means that some unknown work, an act that happens through chance and without any premeditation.

Claim means the relationship/liability claim, declaration, statement etc.

Accidental claims mean that the right in relation to the accident due to the negligence of others. The functioning of negligence has gone wrong.

In English law, the legal representative of any person or deceased person who ends due to another's negligent work, besides committing criminal proceedings, can recover losses under the law of Torts. Responsible negligence involves ignoring the use of general care or skills, for which the defendant is owing due to general care and skill, by which the plaintiff ignores the injury of a person or property. Thus, negligence raises an action with the loss of the other party.

HISTORY

There was no right to claim the loss in case of death under the common law. In the case of personal injury, the right to claim injury was always recognized. In order to give effective rights to the person injured or expelled in an accident, the Fatal Accident Act was enacted in 1885 India. This Act gave only one process and the right to designated legal heirs to claim compensation from the negligent person. This act has worked for a comfortable long period in India. Due to the increase in the automation and the consequential loss of life and property in the accident, it was believed that an effective law should be brought to relieve the victims of the accident claims. For its convenience, provisions for compulsory third-party insurance have been made and by making amendments in Act No. 11 of the Motor Vehicles Act, 1956, to resolve the decision of the claim in the Motor Vehicles Act, through which the construction of the motor in the context of third-party insurance and Section 110 (A) to 110 (f) in the context, the procedure for the decision of the accident claim tribunal and claim has been provided from Section 93 to 109. Initially, liability was limited to a particular amount, but after 1982 the liability of the insurance company has been unlimited and even the protection of insurance companies has been banned so that the payment to the third party is ensured.

Apart from Section 9 (A) to 92 (E) in the year 1982, a new concept has been introduced to provide interim compensation on 'No fault' basis. With the same amendment, relief has also been given to those who are eliminated by the hit and run accidents, where abusive vehicles are not identified.

THE MOTOR VEHICLES ACT, 1988

A new motor vehicle act has been introduced in 1988 and interim awards have been provided in chapter 10 of the new Motor Vehicle Act. Chapter 11 provides for the insurance of motor vehicle against the risk of third parties and provides for Chapter 12 Claim Tribunal and the Constitution of the Claims and related matters. This law is still in the era of serious changes. The Supreme Court has said many times that it is a welfare law and to help the victims, the provision of the law should be interpreted. In this process, the Supreme Court has passed various decisions in recent times, which has limited the legality of the insurance company's legal defense as the law relating to the burden of proof has been completely changed. Limit for holding a limited driving license, the use of the vehicle for rent and reward, the use of transport vehicle for the purpose permitted by the permit so strictly does not need to prove that insurers are not taking advantage of these protections.

WHO CAN BE CLAIMANTS?

 In cases of injury, it is injured and in cases of death, the legal heirs of the deceased are the claimants.

ASSESSMENT OF COMPENSATION

The value of life cannot be calculated. Similarly, no human can be kept in any kind of monetary value of his body or any other person. Courts can only compensate due to economic and monetary losses and there may be other expenses, but no court can try to compensate for the loss of life or organ. Mainly economic loss assessment should be done. The nominal loss is awarded to the funeral expenses and on the loss of the consortium. Long life expectancy is linked to earning potential. Whenever a tribunal or court in its nature needs to recover the amount of compensation in cases of accidents, it contains some of the estimated work, some hypothetical thoughts, some amount of sympathy related to the nature of inefficiency.

Steps were taken for imposing fines in death cases:

With the recent decision of Supreme Court vs. Sarla Verma, the work of the Tribunal has been made somewhat easier, in which the following factors should be considered by the Tribunal during the compensation.

Phase 1.

The income of the deceased should be detected every year. The deduction from outside income should be done in relation to the amount that the deceased had to spend through the personal expenditure of life. The rest of the family, which are considered contributing to dependent families, become multiples.

Phase 2

Regarding the age of dead and active careers, the qualitative method should be selected

Injury case

The body is deprived of the injury, resulting in the loss, the claimant has the right to claim the loss. The nature of gravity and inefficiency or damage due to injuries can vary.

Loss can be pecuniary as well as non-economic. But all of them have to be converted into rupees and paisa. The court has to make an equitable attempt to award the loss so that damage to the claimant can be compensated. It is desirable that as far as possible comparable injuries should be compensated by comparable awards.

HOW TO ASSESS DAMAGES

The assessment of the loss should be done under two heads, such as; Pecuniary losses and Non-pecuniary losses.

Pecuniary losses can include expenditure incurred by the claimant:

1. Medical treatment, attendance, transportation, special diet, etc.;

2. The actual loss of earning profit till the date of trial; Future loss of earnings

 

Non- pecuniary losses include:

1. Damage, pain, and suffering for mental and physical shock are likely to be suffering or suffering in the future;

2. Damage to compensate for the loss of the facilities of life, in which various cases can be included, i.e., due to injury, the claimant may not be able to walk, run or sit.

 

What's covered under third party motor insurance

A comprehensive motor insurance policy generally consists of two bundled insurance cover- third-party insurance and loss of self-are covered. Some come in addition to the underlying personal accident cover. As the name implies, 'Own Losses' and 'Personal Accident' insurance components want to cover your losses, which means damage to your car or personal injury, disability, and death, respectively.

While the above are two optional covers, according to the Motor Vehicles Act, third party insurance is mandatory for all vehicle owners. Your third-party insurance does not cover you and your motor vehicle. This involves your legal liability for the loss of any third party - while using your vehicle - physical injury, death, and damage to third party property.The beneficiary of third party insurance is the third party injured. The insured or the policyholder is the only beneficiary of the nominal policy.The first party in a third-party insurance policy is insured and the other party is the insurance company. Here the third party is the third person. Under your third-party insurance, a third party may file a claim for compensation for injury, death, property damage due to your car. The third part will be filed against you and your insurer for claiming compensation. Although there is no limit on the liability covered for injury or death, the cover for third party property (usually a third-party car) has been kept at 7.5 lakh rupees. Says Sanjay Dutta, chief underwriting and claims of ICICI Lombard General Insurance, "If the loss exceeds the upper limit, then the balance should be paid by the policyholder."

If you hit the third party with another car, then you can claim a loss from another person. In case of death, the dependents of the deceased can claim compensation based on the lost income. Due to death treatment, medical expenses can also be claimed for treatment. For the loss of property, the surveyor's report, the authorized garage, and automotive inspection report is required to measure the loss of the original bills. If you succeed in your claim of compensation, you will be paid by the insurer of another person under your third-party insurance (up to the limit in the policy).

Premium rates for third-party insurance are decided by IRDAI and are the same for all insurance companies. However, the amount to be paid as a third-party premium may vary according to your car's engine capacity. For example, while a small Hyundai i10 owner has to pay 1,500 rupees for Toyota Altius, the annual third-party insurance premium is Rs. 5,000. This fixed third-party insurance rate is reviewed by the annual authority and adjustment usually increases.

Complex claim process

Claiming a third-party motor is not easy. The complex course starts with registering an FIR with the police and receiving the charge sheet, as we all know that there is a big task in itself. After this, someone has to contact the Motor Claims Attorney who registers a case in the Motor Accident Claims Tribunal in a special court. Civil courts cannot decide on road accident compensation claims. The matter should be filed with the jurisdiction in the area in the Tribunal where the accident occurred or with the jurisdiction over the area where the claimant or the defendant lives with the tribunal. The court then listens to both sides, examines evidence, and solves the liability. If the decision is in your favor, you get compensation for your loss.

However, according to this three-step process scenario, the rules and insurance coverage are not different according to both parties. It makes reality more complicated on the ground than appearing on paper.Here are the combination of different situations and situations where A's car accident has been damaged by the car of B and in every case legal solution (damage).

When A has only basic third-party insurance

Those who do not have a comprehensive motor cover, themselves can claim compensation under the third-party insurance of another person i.e. in this case B. Your insurer will neither compensate you nor will you help in filing a complaint in the form of insurance. Your agreement with your insurer is completely for your liability for the loss of any third party. However, in this case, your own car has been damaged, which is not covered by your third-party contract. Here you are the third party and you can claim compensation under third party insurance of only B. Therefore unless you have no harm, the only way to get compensation is to track the other vehicle and file a complaint against the other party. Here the heavy work is establishing the fault of the other party in the court.

The victim has to establish negligence and only then is the case against the offender (B) and his insurance company. Therefore, you cannot take any money unless the court decides in your favor. Apart from this, it is not necessary that a favorable decision will mean that you get the full amount for which you filed. The second party and its insurer will only pay you the amount given by the court. Also, if you get less than what you claim, you cannot claim your indemnity under your 'insurance' policy from your insurer because the law did not claim more than one claim for the same loss can go. The above procedure will be same whether B has comprehensive motor insurance or third party insurance.

HOW TO FILE CLAIM APPLICATION                                                                           

Claims application can be filed under Section 163 A for claims to be determined on the basis of the structural formula provided in Schedule II. Schedule II has been suffering from serious mistakes and the Supreme Court has said that total dependence on this schedule cannot be kept. The injured or legal representative of the deceased can claim the claimant as the owner in the prescribed format to the driver, owner, and insurer. In some states, the driver is not an essential party. No limit has been set for filing claim application. Initially, when the law was enacted, the limit was 6 months, which was extended for one year later and finally the provision of the boundary in the welfare law text has been removed.

Applications for compensation arising from the accident of under section 166 of the Motor Vehicles Act, 1988 can be applied: -

·         The person who has kept the injury, or

·         By the property owner, or

·         where a legal representative of the deceased / or, the accident has died

 By any agent duly authorized by the injured person

Where legal representatives of the deceased have not been included in any such application for compensation, the application will be made for the benefit of all the legal representatives of the deceased, and the legal representatives who have not been so involved, the respondents to the application. Every application will be made at the option of the claimant for compensation arising out of compensation caused by death or physical injury, either the jurisdiction of the claims tribunal in which the accident occurred or the claims within the local boundaries were given to the Tribunal whose jurisdiction resides in the defendant's hand, in such a way as to determine such details.

The application for compensation should be done within six months of the occurrence of the accident. The Claim Tribunal, however, can entertain the application after the expiry of the six-month period, but not more than twelve months, if it is satisfied that application was stopped due to the adequate reason of application from time to time.

Sec 158 (6) introduced by the Act states that as soon as any information is recorded about any accident related to death or physical injury to any person or the report is completed by the police officer, the police station.  Where a copy is made available to the owner, the owner will also be within thirty days of receiving such report, for the claims to be forwarded to the Tribunal and its insurer.

Third Party Claim

In the case of a third party, where your vehicle is included, it is important to ensure that the police and the insurance company are immediately informed of the accident.On the other hand, if you are suffering, that is, if someone else's vehicle was involved, then you have to get the insurance details of that vehicle and inform the insurer of that vehicle.

Own Damage Claim

In the event of your loss claim, i.e., where your vehicle has been damaged due to the accident, to be able to employ the surveyor to assess the loss, wherever necessary, the insurer and the police immediately be intimated. Do not try to transfer the vehicle from the accident site without police permission and the insurance company. Once you get permission to remove and repair the vehicle, you can so. If your policy provides cashless service, which means that you do not have to pay your pocket for the loss of coverage, then the insurance company will pay the workshop directly. In any of these situations, you should immediately tell the insurance company.

Theft Claim

If your vehicle has been stolen, you must immediately inform the police and the insurance company. Apart from this, you must also inform the Transport Department. As soon as you receive the policy document, read about the procedures and documentation requirements for claims rather than waiting for the claim. If you have to claim, make sure that you collect all the necessary documents and submit them to the insurance company with the necessary claim form filled out. There may be some specific documentation requirements for specific types of claims. For example, in relation to a theft claim, there is a special requirement that you should surrender the vehicle key to the insurance company.

LEGAL DEFENCE AVAILABLE TO THE INSURANCE COMPANIES TOWARDS the THIRD PARTY:

The insurance company cannot escape liability except on grounds provided in Section 149 (2). In the recent times, while dealing with the provisions of the Motor Vehicles Act, the Supreme Court has admitted that despite the confirmation and proven defense by the insurance company, they are still not deprived of liability for payment to third parties but such amount can be taken from the owner insured. After one, the courts have admitted that the burden of proof is on the insurance company and the insurance company has not only lead evidence as to breach of condition of policy or violation of provisions of Section 149 (2) It is rather to prove that such a thing happens with the empathy or knowledge of the boss. If knowledge or sympathy is not proven, then the insurance company will be liable even if the defense company is available.

 PROPOSED AMENDMENTS IN MOTOR VEHICLES ACT BY CENTRE

Soon, those who violate the traffic rules will suffer a heavy penalty - now for those crimes which are 10 times more than what they pay - faster and addictive driving. The Center has proposed the Motor Vehicles Amendment Bill, which regulates road transport in the country. The Motor Vehicles Act was revised in 2001. The bill prepared by the Ministry of Road Transport has made penalties for traffic crimes more rigid.

For example, rash driving is now likely to attract civil liability of Rs 5000 besides punishment under the Indian Penal Code. Drunk driving will attract a penalty of 5,000 rupees and the jail sentence of two years.

For the first time, a concept of classified fines for drunk driving is likely to be presented. This means that the penalty will be directly proportional to the amount of alcohol above the prescribed limit of 30 mg per 100 ml blood in the body.

• For the first time, the red light will cost the culprit 500 rupees. The penalty will be 1000 rupees for the second time and if it is repeated again it will go up to Rs 1500.

• A crime like driving drugs can keep criminals behind bars with at least Rs. 5000 for at least two years.

• The penalty for crossing the speed limit will be between Rs 1000 and Rs 1500.

CONCLUSION

The law of accident claims is increasing rapidly and there is a need for amendments in accordance with the requirement of the object, but at the same time the interests of those who are delivering compensation, i.e. insurance companies Implementation of liability for payment should not be approved by law, without giving them the right to compete. Currently, about 10 to 15% of the claims submitted to the Tribunal due to the increasing scale of claims and other cases are fake or other accidents have been converted into road accidents with police officers. It is necessary that while increasing the burden on insurance companies, they should have the right to make choices to reduce fraudulent cases.

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