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!
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.
