effect of rajesh tyagi case

8/7/2019 Effect of Rajesh Tyagi Case

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SUMMARY OF IMPORTANT JUDGMENTS/ORDERSOF DELHI HIGH COURT

AND THE EFFECT OF THEIR IMPLEMENTATION

S.No.

Judgments/Orders passed by Delhi High Court Effect of implementation of the s

(1) (2) (3)

I. Enforcement of Section 158(6) of theMotor Vehicles Act, 1988 Directionsissued by Delhi High Court in the case ofRajesh Tyagi Vs. Jaibir Singh, FAO842/2003 vide orders dated 08.6.2009and 5.11.2009.

Section 158(6) of the Motor Vehicles Actwas incorporated in 1994 and it providesthat the SHO of the Police Station shallsend Accident Information Report (AIR) tothe Claims Tribunal within 30 days of therecording of the FIR and a copy to the

concerned Insurance Company. Theobject of Section 158 (6) of the MotorVehicles Act is that the police is the firstagency to take cognizance of the accidentand it has the entire evidence required forinit iating the proceedings forcompensation.

Direction has been given to Delhi Police tosubmit the Accident Information Reportunder Section 158(6) of the Motor VehiclesAct with the Claims Tribunals within 30days of the accident along with attestedcopy of the FIR, site plan, photographs,registration cover, driving licence,

The directions given to the police wisettlement of claim by the insurance compayment of compensation to the viaccidents.

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insurance policy, permit, fitnesscertificate, MLC and post-mortem report.

Police has also been directed to give thecopy of the Accident Information Reportalong with aforesaid documents to the

insurance companies.

Delhi Police has started followinginitiatives to implement Section 158(6) ofthe Motor Vehicles Act:-

(i) Delhi Police has started a website(www.dpacciclaim.in) in which all relevantinformation/documents are placed whichcan be downloaded by the claimants,Insurance Companies as well as Tribunals.

(ii) Registers to be maintained at policestation level indicating the details such asFIR Number, date of dispatch of Form 54to the learned MACT, etc. A column

containing details of information notincluded in Form 54 along with reasonsfor its non availability shall also bemaintained in the register.

(iii) Delivery of FIR to the Claims Tribunals onthe date of registration.

(iv) Entries in red ink in FIR index about dateof dispatch of Accident InformationReport (hereinafter referred to as AIR).

(v) Checking of AIR (Form 54) dispatchrecords mandatorily during six monthlyinspections by Gazetted Officer.

(vi) ACsP/SHOs shall forward final reports tothe Magistrate only on production ofdispatch of AIR (Form 54) to the learned

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MACT, owner and insurer of the offendingvehicle and the victim/his or her family.

(vii) MACT Monitoring Cell headed by Inspectorto be set up in each District to monitordelivery of AIR (Form 54) in time.

(viii) Monthly meeting of ACsP, PG Cell, In-

charge of MACT Monitoring Cells with theClaims Tribunals.

(ix) Appointment of Naib Court (a policeofficer) by District DCsP with the ClaimsTribunals.

(x) Review of pendency of AIR (Forms 54) byDistrict DCsP in weekly law and ordermeeting.

(xi) Placement of AIR (Form 54) on the websiteso that it can be downloaded by theClaims Tribunals, Insurance Companiesand claimants.

(xii) Installation of checklist boards in SHOsrooms.

(xiii)Establishment of District Cells as pilotproject in three districts.

The Delhi High Court has passed following

directions to Delhi Police on 8th June,

2009:-

(i) In terms of the said undertaking ofthe Delhi Police, the AccidentInformation Report (Form 54) besubmitted with the concernedMotor Vehicles Tribunal within 30days of the registration of FIR ofaccident. The AccidentInformation Report shall contain

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the fol lowing addit ionalinformation:-

14. In case of death: Namesand address of the next of kin of thedeceased.

15. In case of injury: Natureof injuries suffered

16. Names and addresses of theeye-witnesses.

17. In case of transport vehicles:(i ) Particulars of the

permit.(ii) Particulars of the fitness

certificate.

(ii) The Accident Information Reportshall be accompanied by theattested copies of the FIR, siteplan, photographs, registrationcover, driving licence, insurancepolicy, permit and fitness

certificate of the offendingvehicle. MLC and Post - mortemreport shall be submitted as soonas they are received. If any ofthe aforesaid information ordocument is not available at thetime of submitting the AIR, thesame may be submitted as soonas the same is received.

(iii) Simultaneously upon filing of AIR bythe SHO with the Claims Tribunal,the copy of the AIR be furnishedto the Insurance Company alongwith the aforesaid documents.

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Directions to Delhi Police regarding

pending cases for the period between

1994-2009

Delhi Police has started compliance of Section158(6) of the Motor Vehicles Act w.e.f. 8th June,2009 after the order of this Court. However, therehas been no compliance during the period 14thNovember 1994 up to 7th June, 2009 which hascaused grave prejudice to the victims of the roadaccident. The Delhi High Court has issued followingdirections to the Delhi Police on 5th November, 2009with respect to the pending cases:-

(i) The Delhi Police shall file AccidentInformation Reports under Section 158(6)of the Motor Vehicles Act in respect of allthe pending cases filed before the ClaimsTribunals after 14th November, 1994.

(ii)The Delhi Police shall collect the list of allpending cases filed after 14th November,1994 from the Claim Tribunals and shallfile the Accident Information Reports atthe time of the hearing of the claim casesbefore the learned Tribunal.

(iii) The service of summons on thedriver, owner and eye-witness in allpending cases, if not effected, shall beeffected through the Delhi Police who shallensure their service and production beforethe concerned Claims Tribunal.

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(iv)The Delhi Police shall also place on recordthe relevant documents before the Claims Tribunal including FIR, MLC/post mortemreport, site plan, driving licence,registration cover, Insurance policy,fitness, permit, etc. at the time of hearingof the cases before the Claims Tribunal.

(v) The Delhi Police has already deputed aNaib Court with every Claims Tribunal.The Naib Court shall remain present at thetime of hearing of all the cases and theClaims Tribunal shall pass the appropriateorder for filing of the report under Section158(6), service of the owner, driver andeye-witness or production of documentsas the case may be. The copy of suchorders shall be given dasti to Naib Courtwhereupon the Naib Court shall note downthe next date of hearing of the cases,coordinate with the concerned PoliceStations and provide the status report ofthose cases to the Court on the next dateof hearing. The compliance of this ordershall be done by Delhi Police in a phasedmanner.

(vi) In the event of non-compliance of thisorder by Delhi Police, the concernedTribunal shall bring the same to the noticeof the ACP concerned in the monthlymeeting between Claims Tribunals and theACsP in terms of order dated 8th June,2009.

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II. Enforcement of Section 166(4) of theMotor Vehicles Act, 1988 Directionsissued by Delhi High Court in the case ofRajesh Tyagi Vs. Jaibir Singh, FAO842/2003 vide order dated 08.6.2009.

Section 166 (4) of the Motor Vehicles Actwas also incorporated in 1994 and itprovides that the Claims Tribunal shalltreat the Accident Information Report (AIR)under Section 158(6) as a claim petition.The object of Section 166(4) of the MotorVehicles Act is that poor and helplessvictims of the road accident may beignorant of their rights and, therefore, thecognizance of the claim for compensationbe taken by the Claims Tribunal directly onthe basis of the Accident InformationReport of the police without therequirement of a separate claim petition to

be filed by the claimant. However, thisprovision was not being enforced as thepolice was not filing the AccidentInformation Report with the Claims Tribunal. With the undertaking of thepolice and the directions of the High Courtto the police to strictly enforce Section158(6) of the Motor Vehicles Act, the DelhiHigh Court has given following directionsto the Motor Accident Claim Tribunals on8th June, 2009 for enforcement of Section166(4) of the Motor Vehicles Act:-

(i ) Maintenance of a register forrecording of the FIR which shall bereceived daily from the police

All the Motor Accident Claims Tribunals haforesaid system for compliance of SectioMotor Vehicles Act, 1988.

The net effect of aforesaid directions isPolice is filing Accident Information Reportrelevant documents including driregistration cover, insurance policy, fitnesthe offending vehicle, before the Tribunalof the accident. Simultaneously, theOfficer is also producing the owner, drivand the claimants before the claims TribuCompanies are already represented retainers and the Claims Tribunals straighto record the statements of all concerdocuments and pass an award. 25 cashave been settled by the Claims Tribuna2009 to 20th July, 2009 on the basis of tDelhi Police.

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stations. The Accident InformationReport and private claim petitionfiled in respect of an FIR be markedin this register.

(ii) Maintenance of a separateinstitution register for registeringthe AIR as miscellaneous

application.(iii) Listing of AIR on the judicial side and

issuance of notice to the claimant,owner, driver and InsuranceCompany.

(iv) Notice to the claimant, owner anddriver be served through theInvestigating Officer.

(v) Notice of Insurance Company beserved through the nominatedcounsel of each company.

(vi) AIR be listed as a separate categoryin the cause list as miscellaneousapplication.

(vii) After appearance of the claimant,

the AIR be registered as a claimpetition.

(viii) If the claimant has filed a separateclaim petition, the AIR be taggedwith the claim petition.

III. Directions to Insurance companies in thecase of Rajesh Tyagi Vs. Jaibir Singh, FAO842/2003 Orders dated 08.6.2009 and5.11.2009

The Insurance Companies have not beensettling the claims of the victims of theroad accident on the ground that theyhave no notice/intimation of the road

The victims of the road accident compensation without any delay with theadmitted amount by the Insurance Compa

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accident until the receipt of the noticefrom the Claims Tribunal. With theenforcement of Section 158(6) of theMotor Vehicles Act, the SHO of the PoliceStation is serving the copy of the AccidentInformation Report along with all therelevant documents on the Insurance

Company at the time of filing of theAccident Information Report with theClaims Tribunal. The Insurance Companiesnow have sufficient notice of the claim andthey can verify the same and settle theclaim.

The Insurance companies have beendirected to investigate the claim uponreceipt of the AIR in terms of their ThirdParty Claim Procedure Manual and tosubmit their reply along with the copy ofthe investigation report and thecomputation of compensation according tothem before the Claims Tribunals within 60days wherever the accident, driving

licence, permit, evidence and otherdocuments relate to Delhi and within 90days where the documents relate tooutside Delhi. If there is no defence underSection 149 of the Motor Vehicles Act,1988, the Insurance Companies have beendirected to deposit the admitted amountaccording to their computation with theirreply before the Claims Tribunal. The copyof the AIR furnished by the Police to theInsurance Company shall be sufficientnotice of the institution of the claimpetition before the Claims Tribunal.

In order to streamline the system, it isdirected that henceforth immediately

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upon receipt of intimation of the claim, theInsurance Companies shall first appoint acompetent designated officer who shall beresponsible for processing and taking adecision in respect of that claim and thename of such officer shall be disclosed inthe reply/written statement to be filed

before the Claims Tribunal. Thedesignated officer so appointed shallappoint an Investigator and after receiptof report of the Investigator, thedesignated officer shall take the reasoneddecision in writing as to the amountpayable to the claimants in accordancewith law. The decision of the designatedofficer on the claim shall be filed alongwith the reply/written statement beforethe Claims Tribunal. If the learned Tribunalcomes to the conclusion at the time ofdeciding the claim that the designatedofficer had delayed or defeated the claim,appropriate order shall be passed by the

learned Tribunal in respect of thedesignated officer at the time of passingthe award.

With respect to the pending cases relatingto Motor Accident Claims in Delhi, all theInsurance Companies are directed toappoint a designated competent officerresponsible for processing of each casewithin 10 days and such officer shallprocess the claim within 30 days and passa reasoned order in writing about theamount payable in accordance with law.The order of the designated officer alongwith the report of the Investigator shall be

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filed before the learned Tribunal within 20days of the date of the order of thedesignated officer.

IV. Special Scheme for Settlement of Motor

Accident Claims within 120 days inrespect of accidents during 15.1.2010 to14.7.2010.

Vide order dated 5th November, 2009 inMAC.APP.236/2009 & 238/2009, Delhi High Courtconsti tuted a Committee comprising ofSecretaries/nominees of the Ministries of Road Transport and Highways; Finance (Department ofInsurance); Law & Justice and Company Affairs; and Joint Commissioner of Delhi Police. The Committeeconsulted all the 17 Insurance Companies and withtheir consent, prepared Claims Tribunal AgreedProcedure which was approved by Delhi High Court.

Delhi Police agreed to implement the saidprocedure on trial basis as a pilot project for a periodof six months.

The salient features of the Claims Tribunal AgreedProcedure approved by the Delhi High Court are asunder:-

(i) The Investigating Officer of the Police shallintimate the accident to the ClaimsTribunal within 48 hours of the accident.The particulars of the accident shall beuploaded on the website of the Delhi

The victims of the road accident shall getwithin 120 days of the accident undScheme.

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Police and the intimation shall also begiven to the Insurance Companies.

(ii) The Insurance Company shall appoint adesignated officer who shall beresponsible for dealing/processing of thatcase.

(iii) The investigating officer of the Police shallcollect the relevant evidence relating tothe accident as well as computation ofcompensation and shall complete theinvestigation within 30 days.

(iv) The Investigating Officer of the Police shallfile the Detailed Accident Report (DAR)with the Claims Tribunal within 30 days ofthe accident with a copy to the InsuranceCompany, claimant and Delhi LegalServices Authority.

(v) The Investigating Officer shall produceowner, driver, claimant and eye-witnessbefore the Claims Tribunal along with theDetailed Accident Report.

(vi) The Insurance Company shall take adecision as to the quantum of compensation payable to the Claimantsand submit the decision before the Claims Tribunals within 30 days of the DetailedAccident Report.

(vii) The amount assessed by the InsuranceCompany shall constitute a legal offer tothe claimants who shall submit their

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response within 30 days. If the offer isacceptable to the claimants, the Tribunalshall pass a consent award and theInsurance Company shall make thepayment of the award amount to theclaimants within 30 days.

(viii) If the offer of the Insurance Company isnot acceptable to the claimants or theInsurance Company has any defenceavailable under law, the Claims Tribunalshall conduct an inquiry under Section 168and 169 of the Motor Vehicles Act andshall pass an award within a period of 30days thereafter.

Vide order dated 15th January, 2010, the HighCourt has directed that the Pilot Project shallcommence from 2nd April, 2010. In the meantime,the Committee appointed by the Court has beendirected to examine cashless treatment of thevictims of the road accidents by incorporating Clause

3(3) in the Claims Tribunal Agreed Procedure which isreproduced hereunder:-

3(3). In case of grievous injuriessuffered by a victim of the roadaccident who may require somesurgery or shifting to some otherhospital for better treatment, theInvestigating Officer of the Policeshall verify the existence of theInsurance policy in the firstinstance and shall submit theverification report and the copy ofthe Insurance policy along with theReport under Clause 3(2) to the

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V. Suggestions for Amendment of Motor

Vehicles Act, 1988.

On 14th September, 2009, Ministry of RoadTransport and Highways, Government of Indiaconstituted an Expert Committee to review theMotor Vehicles Act, 1988 in a comprehensivemanner, study the corresponding law in leadingAsian countries and make appropriaterecommendations for the amendment in the Act. This was reported in the newspaper on 22nd

September, 2009.

Vide order dated 25th September, 2009 in FAONo.842/2003, Delhi High Court advised theGovernment to examine law relating to MotorAccident Claims in South Africa which providesthat all vehicles on road are insured for thirdparty risk and the owners of the vehicles are notrequired to take the insurance policy for thirdparty liability. A surcharge is added to the cost of

petrol/diesel and the amount so collected is sentto Road Accident Fund which is managed by RoadAccident Fund Commission.

The Road Accident Fund Commission manages anddisburses the Road Accident Fund. The Commissionalso enquires into and makes recommendationsregarding the system for computation anddisbursement of compensation to the victims of roadaccident. The Commission also examines the factorsresponsible for the accidents such as excessivespeed, influence of alcohol, vehicle fitness,overloading, poor brakes and road environmentalconditions including poor maintenance of roadsurface and inadequate signs and markings. The

The Expert Committee appointed by the MTransport and Highways is considering tof the High Court.

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Commission also makes contribution of Fuel LevyFund for campaign/programmes to promote roadsafety.

The South African model system shall also save thecost of manpower used by Insurance companies toissue policies. The report of Road Accident Fund

Commission in South Africa is available on thewebsite,http://transport.gov.za/library/docs/raf/index.htm .

Vide order dated 18th November, 2009 inMAC.APP.287/2008, the Delhi High Court has giventhe following suggestions to the Government:-

(i) Strict rules regardingissuance of driving licence.(ii) Computerization of the

driving licences and issuingall over the country.

(iii) Severe punishment for fakelicence. (At present, noaction is taken for the

offenders involved in theracket of issuing fakelicences. Rather thevictims of the roadaccidents suffer becausethe Insurance Companyavoids the liability on theground of fake licence).

(iv) Higher punishment fordrunken driving.

(v) Separate punishment forthe accused who runsaway from the spot aftercausing the accident.

(vi) Separate punishment for

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removing the vehicle fromthe spot of the accidentand prohibition/punishmentfor the workshop whorepairs the vehicle withoutclearance by the police.

(vii) Improvement of road

condition.(viii) Removal of unsafe vehicles

from the road.(ix) Special cell of the police to

enforce the law as well asfor investigation/inquiryinto the accident cases.

(x) The computerization of therecords of registration andinsurance of the vehicles. The Insurance Policynumber of all the vehiclesshould be duly recordedwith the registrationauthorities so that

immediately after theaccident, the police canfind out the InsurancePolicy number and send anintimation to the InsuranceCompany.

VI. Protection of the Award amount.

To protect the award money from beingwasted, vide order dated 21st April, 2009in MAC.APP.No.130/2009, Delhi High Courthas directed LIC, RBI, SBI and PNB to

Most of the victims of the road accidenlowest strata of the society and sole leaving behind large family. There is country and minor children are involvrepresentatives of the deceased have no

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formulate a special scheme for victims ofroad accident in which higher rate ofinterest is provided and the amount iskept in such a manner that the monthlypayment to the victims of the roadaccident increases 10% every year tomeet the inflation.

UCO Bank and State Bank of India haveformulated a special scheme for victims ofroad accidents on the directions of theHigh Court. The salient features of thescheme of UCO Bank are as under:-

(i) The fixed deposit shall be automaticallyrenewed till the period prescribed by theCourt.

(ii) The interest on the fixed deposit shall bepaid monthly.

(iii) The monthly interest shall be creditedautomatically in the saving account of theclaimant.

(iv) Original fixed deposit receipt shall beretained by the bank in safe custody.However, the original passbook shall begiven to the claimant along with thephotocopy of the FDR.

(v) The original fixed deposit receipt shall behanded over to the claimant at the end ofthe fixed deposit period.

(vi) Photo identity card shall be issued to theclaimant and the withdrawal shall bepermitted only after due verification by theBank of the identity card of the claimant.

(vii) No cheque book shall be issued to theclaimant without permission of the Court.

investment and saving. There is a dangebeing wasted or even the victims being cnoted that there is no uniform systedirections of fixed deposit and even thfixed deposit varies from 3 to 10 years anwhat happens to the money thereafter.

The scheme formulated by this Court smoney of the victims of the road accident

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(viii) No loan, advance or withdrawal shall beallowed on the fixed deposit without permissionof the Court.

(ix) The claimant can operate the saving bankaccount from the nearest branch of UCOBank and on the request of the claimant,the bank shall provide the said facility.

(x) Half yearly statement of account shall befiled by the UCO Bank with the HighCourt/Tribunal.

(xi) UCO Bank has appointed Mr. M.M. Tandon,Member-Retail Team, UCO Bank Zonal,Parliament Street, New Delhi, MobileNo. 09310356400 who shall co-ordinate withthe High Court and the various Tribunals foropening of the Fixed Deposit and SavingBank Account for the victims of the roadaccidents.

VII. Delhi Motor Accident Claims Tribunal

Rules, 2008

In the case of FAO 492/1999, it came tothe notice of Delhi High Court that DelhiMotor Accident Claims Tribunal Rules weredrafted in March, 1999 and the Draft Ruleswere published on 16th August, 2001inviting objections from the public butdespite a lapse of more than eight years,the Rules have not yet been notified.Notice was, therefore, issued toGovernment of NCT of Delhi on 19 th May,2009 in response to which it was informedto the High Court that the Draft Rules wereagain published in Delhi Gazette on 3rd

Delhi Motor Accident Claims Tribunal Ruvery benevolent provisions. Some of provisions are that an uninsured vehreleased on superdari by any Court unlesthe offending vehicle gives sufficient secthe award that may be passed by the clOn the expiry of three months of thMagistrate shall auction the offending vethe amount received in auction to the Clabe adjusted in the award amount. The Rthe duties of the Police Officers, RegistUnder the new Rules awards of the Claimbe adjudicated like a decree of the CivilClaims Tribunals are vested with all thecivil Courts. The reports submitted by th

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September, 2008 and the same arepending for approval before the Cabinet ofGovernment of NCT of Delhi.

Vide order dated 22nd June, 2009,Government of NCT of Delhi was advisedto expedite the consideration of the said

Rules and some suggestions were givenby the High Court to be incorporated inthe Draft Rules.

On 13th July, 2009, Government of NCT ofDelhi notified Delhi Motor AccidentsClaims Tribunal Rules, 2008.

Vide order dated 5th November, 2009, theHigh Court has given suggestion to theExpert Committee appointed by theMinistry of Road Transport and Highwaysto consider inclusion of provisions of DelhiMotor Accidents Claims Tribunal Rules,2008 in the Central Rules.

Officer, Registering Authority and the cthe Insurance companies are presumed toshall be read in evidence without formal pto the contrary.

VIII Scope of Section 168 and 169 of the MotorVehicles Act, 1988.

Section 168 of the Motor Vehicles Act provides thatthe Tribunal shall hold an inquiry into the claim.Section 169 provides that the Claims Tribunals shallfollow such summary procedure as it thinks fit.However, it has been noticed that the Tribunals havenot been conducting any inquiry but wereconducting a normal civil trial due to which thedisposal of the claim petition was getting undulydelayed. Vide order dated 22nd May, 2009 in thecase of FAO No.884/2003, the directions have beenissued by Delhi High Court to the Tribunals to

The inquiry into the claim by the Claimsexpedite the hearing and disposal of the c

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conduct an inquiry into the claim petition instead ofa protected civil trial.

IX. Enforcement of Section 196 of the Motor VehiclesAct, 1988

Section 196 of the Motor Vehicles Act provides forimprisonment upto three months or fine uptoRs.5,000/- or both for the driver and owner of theuninsured vehicles. Delhi Police has not beenprosecuting the offenders of uninsured vehiclesunder Section 196 of the Motor Vehicles Act. ShowCause Notice was issued to the Commissioner ofPolice on 19th August, 2009 in pursuance to whichthe Delhi Police has regretted the lapse in notimplementing Section 196 of the Motor Vehicles Actand has issued a Standing Order No.157/2009 foradding Section 196 of the Motor Vehicles Act in allpending investigations and to file supplementarychallans in the cases pending trial in respect ofuninsured vehicles. By invoking Section 196 of the

Motor Vehicles Act, the owners of many uninsuredvehicles have paid the claim amount to theclaimants.

Strict enforcement of Section 196 of the

Act, 1988 shall inculcate the disciplineinsure the vehicles. Insurance of the veinterest of the victims as well as the vehicles.

X. Prosecution of offenders holding fake drivinglicence as well as persons involved infabricating/forging fake driving licence.

There are large number cases relating to fakedriving licences and no action is taken against thefake driving licence holders as well as persons whofabricate/forge fake driving licences. Forging andholding a fake driving is a serious offence and theperson holding a fake driving licence is a danger to

The prosecution of fake licence holders roads safe.

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the society inasmuch as he is not legally entitled todrive the motor vehicle and may not be knowingdriving at all or his driving licence may have beensuspended for involvement in some accident. Thepersons holding fake driving licence are liable to beprosecuted under law but they drive freely on road. The fake driving licence holders should not be

permitted to drive on the road.

Vide judgment dated 3rd December, 2009 inMAC.APP.236/2009, Delhi High Court constituted aCommittee to draw up a mechanism for prosecutionof fake driving licence holders/forgers underSections 465, 468, 471 and 474 of the Indian PenalCode and to make Delhi roads safe by ensuring thatthe fake driving licence holders do not drive freelyon Delhi roads any more.

The Committee constituted by Delhi High Courtheld its meeting on 14th December, 2009 andsubmitted its report before the High Court on 23rdDecember, 2009.

Based upon the report of the Committee, the HighCourt passed the following directions on23rd December, 2009:-

(i) All complaints relating to fake drivinglicence by the Insurance Company and/orowner of a vehicle be made in writing toDCP/Crime, Police Headquarter, I.P. Estate,New Delhi. DCP/Crime has nominated Mr.Mohan Singh Dabas, ACP/Anti-Auto TheftSquad, Crime Branch, Phone No.011-26925457 as nodal officer to monitor thefake driving licence cases.

(ii) All the Insurance Companies shall make a

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complaint whenever they get information offake driving licence. The InsuranceCompanies shall also compile the data offake driving licences in respect of accidentswhich have occurred in the last three years,i.e., after 1st January, 2007 in Delhi andshall make a complaint to the DCP, Crime

Branch, Delhi Police in the format given inpara -11 (ii) of the order dated 3rdDecember, 2009. The complaint shall beaccompanied by the copy of the fakedriving licence. The complaint shall betransmitted electronically to Delhi Police atthe E-mail ID [email protected]. along withthe scanned copy of the licence said to befake. The complaint shall also be made inwriting duly signed by the authorizedofficer of the Insurance Company.

(iii) The Delhi Police shall take the followingaction in respect of the aforesaidcomplaints:-

(a) If the case is pending investigation, then toensure further investigation into the issueof fake driving licence in the concernedPolice Station.

(b) In pending trial cases, to ensure filing ofsupplementary charge-sheet on this aspect.

(c) The cases in which the trial has alreadybeen completed, to ensure registration offresh FIR by the concerned police station.

(iv) ACP/Anti Auto theft shall maintain record ofall such complaints and action taken by

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police.

(v) Delhi Police shall create a database ofinformation regarding fake licences andlicence holders received from InsuranceCompanies or other sources.

(vi) Whenever the police registers an FIR

against a person for driving with a fakelicence, particulars of that FIR be entered inthe entry against the information received.

(vii) The office of DCP/Crime shall prepare andmaintain a tabulator chart (database) of theinformation received and look for anypatterns within it. It shall take such actionaccording to law against those concernedas it considers proper.

(viii)The police shall place the information ofthose cases where the Driving Licenceproduced was found to be fake on awebsite so that the Transport Authorities in

other States can access it and be armedwith this information before issuing aDriving Licence for such a person in thatState.

Delhi Police shall launch a special drive to book the

persons who fake the driving licences.

All the Insurance Companies have been directed toput the aforesaid directions to immediatecompliance insofar as fresh cases of driving licencesare concerned. All the Insurance Companies havealso been directed to compile the data relating tothe fake driving licences in respect of the accidents

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during the last three years and to make thecomplaint to Delhi Police within a period of fourweeks.

XI. Judgment on the Doctrine of Sovereign Immunity

Air Force Truck killed a person in a motor accident on

22nd May, 2009. The Tribunal awarded a sum ofRs.4,74,488/- against which the Air Force filed theappeal before the High Court raising the plea ofsovereign immunity.

The law with respect to sovereign immunity is well-settled by the Honble Supreme Court in variousjudgments. The rule of immunity in favour of Crownbased on common law in the United Kingdom hasdisappeared from the land of its birth and it has novalidity in our country after the Constitution. TheHonble Supreme Court has further held that Article300 of the Constitution has saved the right ofParliament to enact such law but no law has beenenacted till now. The Maxim that King can do no

wrong or that the Crown is not answerable in torthas no place in Indian jurisprudence where thepower vests, not in the Crown, but in theGovernment, which has to act in accordance withthe provisions of the Constitution and would beanswerable to the people for any violation thereof.The Hon'ble Supreme Court in the case ofPushpaThakur v. Union, 1984 ACJ 559, has held that thedoctrine of sovereign immunity has no application sofar as claims for compensation under the MotorVehicles Act are concerned.

If the Executive does not follow the certain wellsettled law laid down by the Honble Supreme Court,it shall create confusion in the administration of

It is hoped that the Government will issuwithdraw the plea of sovereign immunrelating to motor accident claims and tthis regard shall come to an end.

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justice and undermine the law laid down by theApex Court and shall impair the constitutionalauthority of the Apex Court. The disobedience of thelaw laid down by the Court shall also amount tocontempt of Court.

Vide order dated 12th November, 2009 in

MAC.APP.284/2008, Delhi High Court has directedthe learned Attorney General to personally look intothe matter and consider the implication ofGovernment raising the plea of sovereign immunityin claims under the Motor Vehicles Act, 1988 despiteclear and well settled law by the Honble SupremeCourt. The learned Attorney General shall ascertainthe number of pending motor accident claim casesin various Courts/Tribunals where the plea ofsovereign immunity has been raised and shall alsoconsider the possibility of issuance of acircular/Government of India directive in respect ofall pending motor accident claim cases as well ascases that may arise in future.

XII. Liability of the Insurance Company in respect of apillion rider on a two-wheeler and occupants in aprivate car under comprehensive/package policy.

A comprehensive/package insurance policy coversthe occupants in a private car and a pillion rider on atwo-wheeler and there is a specific clause in theinsurance policies in this regard. Tariff AdvisoryCommittee (TAC) and Insurance Regulatory andDevelopment Authority (IRDA) are the statutoryauthorities to regulate the tariff and terms andconditions of the insurance policies and there aredirections of both these authorities to cover theoccupants in a private car and a pillion rider on a

It is also hoped that large number of peover the country shall come to an end, anwho have been denied compensation oshall ultimately get the compensation legithem.

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two-wheeler under comprehensive/package policy.

Despite the clause in the policy and the directions ofthe TAC and IRDA, the insurance companies do notaccept their liability and litigation in this regard ispending in various Courts all over the country.

In MAC.APP.176/2009, Delhi High Court examined

the officers of United India Insurance Co. Ltd. as wellas TAC and IRDA under Section 165 of the IndianEvidence Act. All the officers admitted the liabilityof the Insurance Companies in such matters. TheCourt also issued notice to all other insurancecompanies. On 16.11.2009, IRDA issued freshcircular reiterating the factual position. IRDAthereafter convened a meeting dated 26th

November, 2009 of all the 17 Insurance Companieswho after deliberations, admitted their liability inrespect of occupants in a private car and a pillionrider on a two-wheeler under thecomprehensive/package policy. All the InsuranceCompanies agreed to comply with the Circular dated16th November, 2009 issued by IRDA restating the

position relating to the liability of the insurancecompanies. All the Insurance Companies furtheragreed to withdraw the contrary plea wherevertaken before the Motor Accident Claims Tribunalsand to issue instructions to their respective lawyersand the operating officers within seven days. Theinsurance companies further agreed to withdraw allappeals filed by them before various High Courtsraising this plea and also to concede the liability inrespect of appeals filed by the claimants before theHigh Court on the above aspect. The number ofappeals pending before the High Courts have beenagreed to be identified by the Insurance Companieswithin two weeks and the withdrawal to be donewithin four weeks thereafter.

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The High Court held that where the vehicle iscovered under a comprehensive/package policy,there is no need for a Motor Accident Claims Tribunalto go into the question whether the insurancecompany is liable to compensate for the death orinjury of a pillion rider on a two-wheeler or theoccupants in a private car. In view of the TariffAdvisory Committees directives and those of theInsurance Regulatory Development Authority, such aplea was not permissible and ought not to havebeen raised as, for instance, it was done in the casebefore it. All the Motor Accident Claims Tribunalsfunctioning in Delhi have been directed to take noteand ensure that no such plea is allowed to be putforward by any insurance company.

XIII Right of legal representatives to claimcompensation after the death of the injured

The accident dated 27th May, 2002 resulted ingrievous injuries to the claimant, who filed the claimpetition before the Tribunal. The claimant died

during the pendency of the petition whereupon hislegal representatives were substituted and an awardwas passed. The Insurance company challenged theaward on the ground that the claim petition abatedon death of the claimant and the right to sue did notsurvive in favour of the legal representatives.

The Law Commission in its 178th Report hasrecommended the amendment to Section 306 of theIndian Succession Act, 1925 as well as Section 166of the Motor Vehicles Act, 1988 to provide forinitiation/continuation of proceedings by the legalrepresentatives of the injured person upon hisdeath. The Law Commission has referred to Full

The Expert Committee appointed by the MTransport and Highways is considering tof the High Court.

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Bench judgment of Karnataka High Court in the caseof Kannamma Vs. Dy. General Manager, ILR 1990Karn. 4300 (FB) in which the Full Benchrecommended that the provisions of Section 306 ofthe Indian Succession Act, 1925 and of Section 110Aof the Motor Vehicles Act, 1939 be amended so as topermit the survival of the right of the injured personto seek compensation to his legal representatives,irrespective of whether the cause of death wasrelatable to the accident or not. In the subsequent,Single Bench judgment of Karnataka High Court inthe case of Baburao Sataba Manabutaker vs.Doreswamy (MFA 4072/1998 dated 4.9.2001)lamented delay in amending the law and pointed outthat the delay in amendment is causing graveinjustice.

The Government is still to act on therecommendation of 178th Report of LawCommission and the position continues as it is whichis causing grave injustice to the victims of the roadaccident.

Since the Government has now appointed aCommittee to review the entire Motor Vehicles Act,vide order dated 4th November, 2009 in MACAPP.432/2009, the copy of this order has beendirected to be sent to the Secretary, Ministry of Road Transport and Highways and to Mr. S. Sunder,Chairman of the Expert Committee appointed byMinistry of Road Transport and Highways to considerthe recommendations of the Law Commission.

XIV Insurance Companies cannot deduct TDS underSection 194-A of the Income Tax Act from the

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interest on the award amount deposited under aninterim order of the Court.

It came to the notice of Delhi High Court that theInsurance Companies had been deducting TDS fromthe interest on award amount directed to bedeposited by an interim order pending finaldetermination of the appeals. After deduction, theTDS certificate is issued in the name of the RegistrarGeneral of the Court. The claimants cannot get therefund/adjustment of the TDS deducted and theysuffer loss of TDS amount to that extent.

Vide judgment dated 26th March, 2009 inMAC.APP.596/2008, Delhi High Court held that thedeposit of award amount including interest with theCourt under interim direction of the Court pendingfinal determination of the appeal is only an inchoateright and, therefore, Section 194-A of the Income TaxAct does not apply and no TDS can be deducted.

The sufferings of victims of road accidentdeduction of TDS by Insurance Companiean end.

XV Scope of Section 165 of the IndianEvidence Act.

Section 165 of the Indian Evidence Actempowers the Judge to ask any question,in any form, at any time, of any witness orof parties, about any fact, relevant orirrelevant and may order production of anydocument or thing. The object of Section165 of the Indian Evidence Act is that the Judge is not merely to listen to theevidence put before him but to inquire tothe utmost into the truth of the matterand question witnesses on points which

The judgment shall help in expeditious cases. By examining the parties and theJudge can reach the truth and cut short th

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of Rs.25,000/- deposited by the appellantwith the appeal under Section 173 of theMotor Vehicles Act.

XVIII Se

companies

On 29th May, 2009, all the four nationalized insurancecompanies, namely, New India Assurance CompanyLimited, Oriental Insurance Company Limited, NationalInsurance Company Limited and United India InsuranceCompany Limited agreed to settle all the pending deathcases in Delhi according to the principles laid down bythe Honble Supreme Court in Sarla Verma Vs. DelhiTransport Corporation, 2009 (6) Scale 129 decided

on 15th April, 2009 with a slight reduction of multiplier by2. The nationalized Insurance companies have alsoagreed to pay interest at the rate of 5% per annum.

The schedule agreed to by all the nationalizedcompanies for settlement of pending death cases is asunder:-

1. MultiplierAge of the deceased

The huge arrears of pending death casesby the said scheme.

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2. Deduction for Personal and LivingExpenses

Deceased unmarried

( i) Deduction towards personal :1/2 (50%)

expenses.

(ii) Deduction where the family of the :1/3rd (33.33%)bachelor is large and dependent onthe income of the deceased.

Deceased married(i) 2 to 3 dependent

family members.: 1/3rd deduction towards

personal expenses.

(ii) 4 to 6 dependentfamily members.

: 1/4th deduction towardspersonal expenses.

( iii ) More than 6 familymembers

: 1/5th deduction towardspersonal expenses.

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3. Future Prospects

(i) Below 40 years of age :Actual salary +

50% towardsfuture prospects.

(ii) Between40-50 years :Actual salary +

30%towards future prospects.

(iii) More than 50 years job :Actual salary only.

No additionfor future prospects.

( iv) Wages not suffic iently :Minimum wages +proved50% towards inflation and price index.

4. Non-Pecuniary Damages(i) Compensation for loss of

estate: Rs.5,000/- to Rs.10,000/-

(ii) Compensation for loss ofconsortium

: Rs.5,000/- to Rs.10,000/-

(iii) Compensation for loss oflove and affection

: Rs.5,000/- to Rs.10,000/-

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5. Rate of InterestRate of Interest : 5.0%

XIX Proposed action plan for expeditiousdisposal of motor accident cases:-

The following plan for disposal of motor accident claimcases prepared by Justice J.R. Midha for expeditiousdisposal of motor accident cases was circulated by theMinistry of Law & Justice in the Conference on TheNational Consultation for Strengthening the Judiciarytowards reducing the Pendency and Delays on 24thOctober, 2009:-

I. FRESH ACCIDENT CASES

The Police is the first agency to take

cognizance of a motor accident and it hasthe entire evidence required for initiatingthe proceedings for compensation.

The Police shall file an Accident InformationReport under Section 158(6) of the MotorVehicles Act before the Claims Tribunal alongwith all the relevant documents required bythe insurance company to settle the claim.

The Police shall also produce the owner,driver, eye-witness and claimants before theClaims Tribunal.

The Police shall simultaneously serve thecopy of the Accident Information Report onthe Insurance Company.

The following action plan shall clear the pending motor accident claim cases all ov

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The Tribunal shall treat the AccidentInformation Report of the Police as a claimpetition under Section 166(4) of the MotorVehicles Act.

The Tribunal shall conduct an inquiry underSection 168 of the Motor Vehicles Act andshall pass an award after recording thestatement of the claimants, driver, owner

and eye-witness. Delhi Police has started the above system

after the notice of contempt issued by theDelhi High Court for failure to comply withSection 158(6) of the Motor Vehicles Act forthe last 15 years.

This system shall save the time lost inservice of the owner, driver and eye-witnessand the collection of relevant documents forpassing the award.

By this system, a claim petition can bedecided in 2-3 months time with 2-3hearings against normal 50-100 hearingsspread over 5-10 years.

II. DISPOSAL OF ARREARS OF PENDING MACTCASES

Large number of cases are pending forservice of driver, owner and eye-witness ofthe offending vehicle. The Police be directedto produce them before the Claims Tribunal.

As per the Procedural Manual of NationalizedInsurance Companies for Motor Claims, theInsurance Company has to appoint aninvestigator immediately upon the receipt ofthe intimation of claim and upon receipt ofthe report of the Investigator, the Companyhas to compute the compensation inaccordance with law and has to offer the

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same to the claimant. However, in actualpractice, the Insurance company appoints aninvestigator, compute the compensation andmake a provision of liability in their accountsbut do not offer the compensation to theclaimant and vehemently contest the claimpetition before the Tribunal. The InsuranceCompanies be directed to appoint an officer

in each case who shall be responsible forprocessing and settlement of each caseaccording to their Procedural Manual. Theadmitted amount along with the computationand the investigators report be filed by theInsurance company in all pending cases.

Where the service is complete, the deathcases can be disposed of according to theattached Schedule agreed to by theInsurance Companies (The Schedule is basedon the law settled by the Honble SupremeCourt with a slight reduction of multiplier bytwo and interest at the rate of 5%).

I II . NEED FOR NEW LAW

More than one lakh people die in roadaccident a year, meaning thereby that oneperson die every ten minutes. A largenumber of cases are hit and run where theparticulars of the offending vehicles arenot traceable. A large number of vehiclesare uninsured and the victims do not getany compensation in those cases. Even inthe case of insured vehicles, the insurancecompanies do not have any attitude toprocess and settle the claim and they waitfor the award of the Tribunal. Most of thevictims of the road accident are sole breadwinners from the poorest strata of the

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society and their family starve after thedeath of the victim. The Insurancecompanies vehemently fight the cases.The version of the Insurance companies isthat the claim-premium ratio is 400% i.e.they are paying Rs.400 towards claimagainst Rs.100 as premium in motorinsurance.

The road users have a fundamental rightto life and liberty which shall include theduty of the State to ensure safety on roadsand to ensure due process of law forexpeditious payment of compensation inthe event of injury or death of the roaduser arising out of permitting the use ofmotor vehicles on the roads.

South African Model is best suited for ourcountry which provides that all vehicles onroad are insured for third party risk andthe owners of the vehicles are notrequired to take the insurance policy forthird party liability. A surcharge is addedto the cost of petrol/diesel and the amount

so collected is sent to Road Accident Fundwhich is managed by Road Accident FundCommission.

The Road Accident Fund Commissionmanages and disburses the Road AccidentFund. The Commission also enquires intoand makes recommendations regardingthe system for computation anddisbursement of compensation to thevictims of road accident. The Commissionalso examines the factors responsible forthe accidents such as excessive speed,influence of alcohol, vehicle fitness,overloading, poor brakes and road

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environmental conditions including poormaintenance of road surface andinadequate signs and markings. TheCommission also makes contribution ofFuel Levy Fund for campaign/programmesto promote road safety.

The South African model system shall alsosave the cost of manpower used by

Insurance companies to issue policies. Thereport of Road Accident Fund Commissionin South Africa is available on the website,http://www.transport.gov.za/library/docs/raf/index.htm.

Delhi High Court has passed an orderdated 25th September, 2009 advising theGovernment to examine the South AfricanLaw.

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http://www.transport.gov.za/library/docs/raf/index.htmhttp://www.transport.gov.za/library/docs/raf/index.htmhttp://www.transport.gov.za/library/docs/raf/index.htmhttp://www.transport.gov.za/library/docs/raf/index.htm

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