Tuesday 18 October 2016

ROAD ACCIDENTS

ROAD ACCIDENTS & FEAR OF HARRASSMENT

In the last few days, I’ve come across at least two cases of people having a road accident, in the 1st case, a legally valid and licensed guy driving a motor bike met an accident, when he slipped, had fractured his leg and also a woman standing on road side got hurt, by the bike, when the bike slipped towards her. 

In the 2nd case, a lady with proper license was driving her car, turning into her colony, on 1st gear and had to apply brakes to avoid contacting a rather rash bike driver, but in turn, the sudden action caused an elderly aunty walking behind the car to be hit and fell down, fracturing her leg. In both cases, found that these people were harassed to start with and they got scared. The other parties claimed victim and blackmailed with threat of calling police etc. One can feel the heat!

Image result for road accident logo

So what does Indian law say about this and what process to follow?

·         Firstly remember, your vehicle (hopefully) is insured and even in the worst case scenario for an old car, the insurer still provides 3rd party insurance. This implies that any claims / compensations sought by a 3rd party (damage to other vehicle or vicitim of an accident) will be paid by the insurer, unless the accident was caused by rash / negligent or drunk driving, which still needs to be proved in a court of law.
·         In cases, where negligent driving cannot be proved, the insurance company takes over the liability, even if the victim dies and it is for the insurer to proceed against the insured for recovery of any amount in the event that there has been a violation of any condition of the insurance policy.
·         Negligent driving has to be proved by the prosecution lawyer. Your need to defend yourself is thus based on whether a case can be brought against you, or if you think there is reason for anyone, including Police to blame you for negligent driving.
·         Be aware of the law (read along), whether you would be simply criminally liable or your liability is civil.

What to do in case of a road accident (Motor Vehicles Act, 1988 – Section 132)
·         Driver to stop his vehicle and wait for a police officer for some reasonable time when he is involved in a road accident and injures any person, animal or causes damage to any other car or property.
·         The driver of the vehicle should give his name and address to the person affected by the accident and also ask for the affected person’s details. If the situation so warrants, call for police and pass on the details to him.

Injury caused to someone in a road accident (Motor Vehicles Act, 1988 - Section 134)
·         Driver should take the injured person to the nearest hospital unless he is unable to do so due to circumstances out of his control.
·         Driver should provide any kind of information to the police as and when demanded.
·         In case there was no police near the area of accident, such incident should be reported to the nearest police station within 24 hours of the said accident.
·         The vehicle insurer should be informed. Information such as date, time and place of the accident, details of the person dead or injured, details of the driver of the car are important in such cases.

Things to do after a road accident (Motor Vehicles Act, 1988 - Section 166)
An application for compensation should be filed under the Claims Tribunal when death, injury or damage has been caused by a motor vehicle.
Such application can be filed by:
·         the person who has sustained such injury;
·         the person whose property is damaged;
·         legal representatives of the person deceased or;
·         an agent duty authorized by the injured person or the legal representatives.


Modes of Compensation:

·         Principle of no fault liability (Motor Vehicles Act, 1988 - Section 140),
In no fault liability principle, the claimant need not prove any fault or neglect on the part of the driver for receiving compensation. Compensation to victim is fixed at 50,000/- in case of death and 25,000/- in case of permanent disablement.

·         Structured formula basis (Motor Vehicles Act, 1988 - Section 163A)
In case of death or permanent disability to any person, the compensation is decided by structured formula basis, the owner of the vehicle or the authorized insurer shall be liable to pay as per the Second Schedule of the Act to the victim or his legal representatives when such vehicle is involved in causing death or permanent disablement to any person.

·         Compensation in hit and run cases (Motor Vehicles Act, 1988 - Section161)
The third mode of compensation is in Hit and Run cases. Hit and run can be explained as the liability of a driver of any vehicle who is involved in a collision which damages vehicle or property of any other person or injures any other person(s) or both and who runs away without giving his name and license number as prescribed by statute to the injured party, witness or any law enforcement officer. It is a situation where the identity of the vehicle responsible for the accident is not traceable. As the identity of the driver or the owner is not traceable, a fixed amount of compensation is given to the victim or the legal representatives of the victim from funds created by the government. The claimant receives 25,000/- and 12,500/- in situation of death and grievous injury respectively.

There is no time limit has been prescribed for filing claim application. The original legislation required application to be filed within 6 months from the date of accident, later increased to one year but for the welfare of the people such limitation has been deleted from the legislation by the 1994 Amendment of the Motor Vehicles Act, 1988.

Appeals (Motor Vehicles Act, 1988 - Section 173)

·         Any person who feels aggrieved by the decision of the Claims tribunal can appeal in the High Court.
·         However, no appeal by the person who is supposed to pay any amount in terms of award given by the Claims Tribunal shall be entertained by the High Court, unless he has deposited with it rupees 25,000.00 or 50% of the amount so awarded, whichever is less in the manner directed by the High Court.
·         Also, no appeal shall lie against any award if the amount in the dispute is less than rupees 10,000.00.
·         Motor Vehicles Act, 1988 also covers the offences like over speeding, dangerous driving and drunk driving. A person should have had minimum 30mg of alcohol per 100ml of blood in his/her body to be called drunk under the Act. A first time offender in the case of drunk driving could be sentenced up to 6 months imprisonment or fined up to two thousand rupees or both. A second time offender within the time gap of 3 years could be sentenced up to 2 years of imprisonment or fined up to three thousand rupees or both.

Criminal liability

Accidents which are caused by the rashness or negligence of the driver give rise to criminal liability. Section 304A of the IPC covers such liability which is punishable for 2 years or fine or both. It is absolutely necessary that death or injury should be a direct result of the negligent act of the accused. If there is a third party intervention then the prosecution case would weaken. Remote or indirect connection will not give rise to any criminal liability. For example, if a driver while talking on the cell phone hits a pedestrian, he is directly responsible for such an accident. On the other hand, when the driver collides with a tree and the tree falls on electrical wires, which then fall on a pedestrian walking by causing his death, then such driver will not be liable under this section.

A person who is driving or riding holds the ultimate duty to control his vehicle. Such a person is prima facie guilty of negligence if his vehicle dashes into something or someone unless he has reason to explain that he did everything in his power to keep the vehicle under control but the accident was inevitable. In the case of K. Perumal vs State Rep. By Inspector Of Police on 15 June, 1998 (https://indiankanoon.org/doc/1124040/)  it was held that the driver was liable to be punished under section 304A of the IPC as he ran over his vehicle on the victim, without attempting to save him even though there was sufficient space on the other side.

Carelessness does not give rise to criminal liability (but it does result in civil liability under the Motor Vehicles Act). Recklessness of the accused should reflect disregard for other person’s life and property which means there has to be intention or what we call in law Mens Rea (the intention or knowledge of wrongdoing that constitutes part of a crime, as opposed to the action or conduct of the accused). For example, if a person is walking on the middle of the road and the accused is driving by the left of the road trying to keep a distance from her. When the accused reaches close to the victim, he abruptly takes a left turn and got struck by the motorcycle. In this case, the accused will not be called negligent.


What Next
The Motor Vehicles Act had been recently amended in March 2015 and introduces stricter measures against traffic offenders. It suggests heavy fines up to 3 lakh rupees and imprisonment up to 7 years for death of a child. The increase in both pecuniary and imprisonment penalty may create a deterrent effect in the minds of general public as well as regular offenders.


LASTLY A WORD ON THE GOOD SAMARITANS
Good Samaritans or people who help road accident victims by taking them to the hospital had everything going against them from legal wrangles to harassment. An Indian Supreme Court directive on 29th October 2014 caused the Government to notify guidelines to protect good Samaritans from any civil & criminal liability among other things. The disclosure of the name has also been made voluntary.

The Ministry of Road Transport and Highways (MoRTH) has notified guidelines on the 13th May, 2015. The notification said that the Government considers it necessary to protect the Good Samaritans from harassment on the actions being taken by them to save the life of the road accident victims and, therefore, these guidelines were being issued. They are to be followed by hospitals, police and all other authorities for the protection of Good Samaritans.

Some of the key points in these guidelines are
·         A bystander or Good Samaritan including an eyewitness of a road accident may take an injured person to the nearest hospital, and the bystander or Good Samaritan should be allowed to leave immediately except after furnishing address by the eyewitness only and no question shall be asked to such bystander or Good Samaritan.
·         The bystander or Good Samaritan shall be suitably rewarded or compensated as decided by the state governments to encourage other citizens to come forward to help the road accident victims.
·         The bystander or Good Samaritan shall not be liable for any civil and criminal liability.
·         A bystander or Good Samaritan, who makes a phone call to inform the police or emergency services for the person lying injured on the road, shall not be compelled to reveal his name and personal details on the phone or in person.
·         The disclosure of personal information, such as name and contact details of the Good Samaritan shall be made voluntary and optional including in the Medico Legal Case (MLC) Form provided by hospitals.
·         The disciplinary or departmental action shall be initiated by the Government concerned against public officials who coerce or intimidate a bystander or Good Samaritan for revealing his name or personal details.
·         In case a bystander or good Samaritan, who has voluntarily stated that he is also an eye-witness to the accident and is required to be examined for the purposes of investigation by the police or during the trial, such bystander or good Samaritan shall be examined on a single occasion and the State Government shall develop standard operating procedures (to be developed within 30 days) to ensure that bystander or good Samaritan is not harassed or intimidated.
·         Video conferencing may be used extensively during examination of bystander or Good Samaritan who is an eye witness in order to prevent harassment and inconvenience to good Samaritans.
·         The Ministry of Health and Family Welfare shall issue guidelines stating that all registered public and private hospitals are not to detain bystander or good Samaritan or demand payment for registration and admission costs, unless the good Samaritan is a family member or relative of the injured and the injured is to be treated immediately Lack of response by a doctor in an emergency situation pertaining to road accidents, where he is expected to provide care, shall constitute “Professional Misconduct”.
·         All hospitals shall publish a charter in Hindi, English and the vernacular language of the State at their entrance stating that they shall not detain bystander or Good Samaritan or ask depositing money from them for the treatment of a victim.
·         In case a bystander or good Samaritan so desires, the hospital shall provide an acknowledgement to such good Samaritan, confirming that an injured person was brought to the hospital and the time and place of such occurrence and the acknowledgement may be prepared in a standard format by the State Government and disseminated to all hospitals in the State for incentivizing the bystander or good Samaritan as deemed fit by the State Government.
·         All public and private hospitals shall implement these guidelines immediately and in case of noncompliance or violation of these guidelines appropriate action shall be taken by the concerned authorities.