Abstract
Right of the victim to claim compensation from the tort-feasor to the extent of damage caused to the property or injury suffered by a person is not only a universal right but also a basic human right. Barring few socialist States, most of the developed as well as developing nations around the world have specific laws for payment of compensation to the vehicular victims. Japan as a developed nation and India as a developing nation, too have specific legislation for payment of compensation to vehicular victims. In this article we will explore the similarities and distinctions between the laws on payment of compensation to vehicular victims prevailing in Japan and India.
Introduction
It is the study of differences and similarities between the laws of different countries. It involves study of the different legal systems in existence in the world. This provides the key to understanding, explaining and interpreting diverse processes and their significance for current institutional arrangements.
Comparison- Despite having conceptual differences between the legal system relating to the payment of compensation to the vehicular victims in both India and Japan, there also exist many similarities in substance.(Refer Table-1)
Similarities in substance-
1. Basis or Source of law – Law in India, and Japan primarily based on law of torts and Common law principles However, the compensation to vehicular victims was provided based on specific statutory law. (Refer Table-2)
2. Triple Liability system – Both India and Japan have triple liability system (administrative, criminal and civil) in place for liabilities resulting from traffic accidents as under;
(a) Administrative Liability- Administrative liability arises for non compliance of regulations relating to use and control of drivers, vehicles, violation of traffic regulation, negligent driving, drunken driving as well as driving under the influence of drugs etc. Infringement of the same attracts penalty as well as administrative action such as suspension and cancellation of driving licence and or confiscation of the vehicle etc.
(b) Criminal Liability-Criminal liability arises in case of an accident involving a motor vehicle resulting in causing personal injuries and or death or damage to property. If the accident was caused due to rash and negligent driving of the driver of the vehicle then, the driver will be liable for imprisonment and or penalty under the Criminal law of the country, besides bearing the administrative liability.
(c) Civil Liability-Besides administrative and criminal liability, the person negligent in causing an accident resulting in personal injury or damage to property, also incurs civil liability, wherein the tort-feasor is liable to pay compensation to the victim for personal injury or property damage.
3. Compensation- In addition to the above, both the countries have specific legislation and provision for payment of compensation for followings;
(a) For personal injury and or death.
(b) For damage to property.
(c) For ‘hit and run’ accident victims.
(d) Both the nations have specific Court/Tribunal for the purpose of administration and dispensing compensation to the vehicular victims.
(e) Both the nations have laws to facilitate, fair, and appropriate settlement of such claims
(f) Commercial insurance companies involved in administering the payment of compensation.
Differences
Distinction in law on compensation to the vehicular victims in India and Japan:
1) Compensation for injury to person or death- While in India liability for bodily injury and or death was unlimited to be calculated based on age, income and dependency, in Japan the same is fixed being structural.
However, in India Section 163-A provides for payment of compensation on structural formula basis as per the table in Schedule II Motor Vehicles Act, 1988 (Table-3) But the same is rejected by the Supreme Court in the case of UPSRTC vs. Trilok Chandra (1996 ACJ 831) as the same was suffering from various mistakes. Even otherwise the said proviso was having a restrictive application only to those victims whose yearly income is not more than Rs. 40,000/-.
2) Principle of liability- In India the liability to pay compensation was primarily based on (a) principle of fault liability (b) principle of no-fault liability (c) principle of Strict liability (d) Mixed system of no-fault / strict liability and principle of fault liability. Whereas, in Japan the same exist somehow in a hybrid manner which is neither based on fault, nor no-fault or strict liability. Accordingly, any person who being the owner of a motor vehicle puts the same to use for his own benefit on the public roads then any type of damage or loss, which is caused by the use of the same, makes the motor vehicle owner liable for it. Liability of the motor vehicle owner continued to exist until and unless the owner was able to prove that he or his driver were not negligent in their act, the accident was caused by a third person and the car did not have any defect in its structure and function. However, it was very difficult for the motor vehicle owner to prove all the three aspects together and so they were always considered liable for their negligent act, which resulted in the occurrence of the accident. In this way the system of compulsory insurance had a close bearing with the concept of no fault liability as it imposed a very strict form of liability on the guilty motor vehicle owner and thereby gave him a very minute chance of denying the liability which he owned.
3) Limitation- While every nation in the world including Japan have provision for limitation for filing claiming compensation, only in India the provision relating to limitation period prescribed u/s 166(3) was omitted by way of Act 54 of 1994 and as such since 14/11/1994 there exist is no limitation period for filing claim for compensation.
Conclusion:
- Developed nations like Japan and developing nations like India have specific laws for payment of compensation to vehicular victims.
- Compensation in India, and Japan was paid by commercial insurance companies based on compulsory insurance of vehicles for such liabilities towards third parties.
- Compensation was based on the principle of negligence and liability.
- However, a new concept of absolute liability or strict liability and or no-fault liability is in vogue in both the countries in addition to fault based liability.
- In India the amount of compensation is limited under strict liability or no-fault liability. Whereas, the same is unlimited under fault liability.
- Japan has a structured compensation system whereas India has an unstructured system.
Table – 1
Comparison of Accident Claim Laws of India and Japan- At a glance
| No. | Subject | India | Japan |
|---|
| 1 | Basis of Legislation | Law of Torts, Common Law Principles | Law of Torts, Common Law Principles |
| 2 | Specific Legislation | Motor Vehicles Act, 1988 (Central Act) | 1. Automobile Liability Security Act, 1955 2. Compulsory Automobile Liability Insurance (CALI) 3. Compulsory Automobile Liability Mutual Aid (CALMA) 4. CALI Disputes Settlement Scheme |
| 3 | Principles of Negligence | 1. Fault Liability 2. No-fault Liability 3. Mixed Liability (Structured Compensation) 4. Strict Liability (Hit and Run) |
Close to No-fault Liability (Burden of proof shifts to the operator of the vehicle) |
| 4 | Statutory Limit of Liability for Personal Injury/Death | Unlimited | Structured |
| 5 | Statutory Limit of Liability for Property Damage | Rs. 6000/- | Limited |
| Provision for Hit and Run Accident Victims | Solatium Fund Scheme, 1989 Death: Rs. 25,000/- Injury: Rs. 12,500/- |
Government Automobile Liability Compensation Business |
| 6 | Administration of Payment of Compensation | Insurance | Insurance |
| 7 | Deciding Authority for Personal Injury/Property Damage | Motor Accident Claims Tribunal (MACT) | Civil Court |
| 8 | Deciding Authority for Hit and Run Compensation | Claims Settlement Authority (Appointed by State Government) | Government Authorities Appointed for the Purpose |
| 9 | Limitation Period for Filing Claims | No Limitation | Three Years |
| 10 | Minimum Compensation for Death/Permanent Disablement | Death: Rs. 50,000/- Permanent Disablement: Rs. 25,000/- (No-fault Liability) |
Death: ¥2,900,000 Permanent Disablement: ¥50,000 to ¥400,000 (Provisional Payment) |
| 11 | Maximum Award in a Fatal Case | Rs. 11,37,14,242/- (United India Insurance Co. vs. Patricia Jean Mahajan, 2006) | Not Available |
| 12 | Time Lag for Disposal without Appeal | 3 to 5 Years | Not Available |
| 13 | Time Lag for Disposal with Appeal | 4 to 10 Years | Not Available |
| 14 | Time Lag for Disposal with Apex Court Appeal | 5 to 16 Years | Not Available |
Table – 2
Compensation Payable for Personal Injury / Death, Japan
For death – Y30 million
For Permanent Disability requiring nursing care at all times or as needed
For Permanent Disability – (1st Grade ) – Y 40 million
For Permanent Disability (2nd Grade ) – Y 30 million
For Permanent Disability other than above
For Permanent Disability (1st Grade ) – Y 30 million
For Permanent Disability (2nd Grade ) – Y 25,900,000
For Permanent Disability (3rd Grade ) – Y 22,190,000
For Permanent Disability (4th Grade ) – Y 18,890,000
For Permanent Disability (5th Grade ) – Y 15,740,000
For Permanent Disability (6th Grade ) – Y 12,960,000
For Permanent Disability (7th Grade ) – Y 10,510,000
For Permanent Disability (8th Grade ) – Y 8,190,000
For Permanent Disability (9th Grade ) – Y 6,160,000
For Permanent Disability (10th Grade ) – Y 4,610,000
For Permanent Disability (11th Grade ) – Y 3,310,000
For Permanent Disability (12th Grade ) – Y 2,240,000
For Permanent Disability (13th Grade ) – Y 1,390,000
For Permanent Disability (14th Grade ) – Y 750,000
For other bodily injury – Y 1.2 million
Table – 3
The Second Schedule
(See Section 163-A)
Schedule For Compensation For Third Party Fatal Accident / Injury Cases Claims
1. Fatal Accidents:
| Annual Income (Rs.) | 3000 | 4200 | 5400 | 6600 | 7800 | 9000 | 10200 | 11400 | 12000 | 18000 | 24000 | 36000 | 40000 |
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| Age of the Victim | Multiplier | Compensation in case of death (Rupees in Thousand) | |||||||||||
| Up to 15 years | 15 | 60 | 84 | 108 | 132 | 156 | 180 | 204 | 228 | 240 | 360 | 480 | 720 |
| Above 15 yrs. but <br> not exceeding 20 yrs. | 16 | 57 | 79.8 | 102 | 125.4 | 148.2 | 171 | 193.8 | 216.6 | 228 | 342 | 456 | 684 |
| Above 20 yrs. but <br> not exceeding 25 yrs. | 17 | 54 | 75.6 | 97.2 | 118.6 | 140.4 | 162 | 183.6 | 205.2 | 216 | 324 | 432 | 648 |
| Above 25 yrs. but <br> not exceeding 30 yrs. | 18 | 51 | 71.4 | 91.8 | 112.2 | 132.6 | 153 | 173.4 | 193.8 | 204 | 306 | 408 | 612 |
| Above 30 yrs. but <br> not exceeding 35 yrs. | 17 | 50 | 67.2 | 86.4 | 105.6 | 124.8 | 144 | 163.2 | 192.4 | 192 | 288 | 384 | 576 |
| Above 35 yrs. but <br> not exceeding 40 yrs. | 16 | 50 | 63 | 81 | 95 | 117 | 135 | 153 | 171 | 180 | 270 | 380 | 540 |
| Above 40 yrs. but <br> not exceeding 45 yrs. | 15 | 50 | 58.8 | 75.6 | 92.4 | 109.2 | 126 | 142.8 | 159.6 | 168 | 252 | 336 | 504 |
| Above 45 yrs. but <br> not exceeding 50 yrs. | 13 | 50 | 50.4 | 64.8 | 79.2 | 93.6 | 108 | 122.4 | 136.8 | 144 | 216 | 286 | 432 |
| Above 50 yrs. but <br> not exceeding 55 yrs. | 11 | 50 | 50 | 54 | 66 | 78 | 90 | 102 | 114 | 120 | 180 | 240 | 360 |
| Above 55 yrs. but <br> not exceeding 60 yrs. | 8 | 50 | 50 | 50 | 52.8 | 62.4 | 72 | 81.6 | 91.2 | 96 | 144 | 192 | 286 |
| Above 60 yrs. but <br> not exceeding 65 yrs. | 5 | 50 | 50 | 50 | 50 | 50 | 54 | 61.2 | 68.4 | 72 | 108 | 144 | 216 |
| Above 65 years | 5 | 50 | 50 | 50 | 50 | 50 | 50 | 51 | 57 | 60 | 90 | 120 | 180 |
Note- The amount of compensation so arrived at in the case of fatal accident claims shall be reduced by 1/3rd in consideration of the expense which the victim would have incurred towards maintaining himself had he been alive.
2. Amount of compensation shall not be less than Rs. 50,000.
3. General Damage (in case of death):
The following General Damages shall be payable in addition to compensation outlined above:
(i) Funeral expenses -Rs. 2,000/-
(ii) Loss of Consortium, if beneficiary is the spouse -Rs. 5,000/-
(iii) Loss of Estate -Rs. 2,500/-
(iv) Medical Expenses-Actual expenses incurred before death supported by medical bills/vouchers but not exceeding Rs. 15,000/-
4. General Damages in case of Injuries and Disabilities:
(i) Pain and sufferings
(a) Grievous injuries – Rs. 5,000/-
(b) Non-grievous injuries – Rs. 1,000/-
(ii) Medical expenses- actual expenses incurred supported by bills / vouchers but not exceeding as one time payment – Rs. 15,000/-
5. Disability in non-fatal accidents
The following compensation shall be payable in case of disability to the victim arising out of non-fatal accidents Loss of income, if any, for actual period of disablement not exceeding 52 weeks.
Plus either of the following:-
(a) In case of Permanent total disablement the amount payable shall be arrived at by multiplying the annual loss of income by the Multiplier applicable to the age on the date of determining the compensation, or
(b) In case of Permanent partial disablement such percentage of compensation which would have been payable in the case of Permanent total disablement as specified under item (a) above.
Injuries deemed to result in Permanent total disablement / Permanent partial disablement and percentage of loss of earning capacity shall be as per Schedule I under Workmen’s Compensation Act, 1923.
Notional Income for compensation to those who had no income prior to accident:-
Fatal and disability in non-fatal accidents:-
(a) Non-earning persons- Rs. 15,000 p.a.
(b) Spouse – Rs. 1/3rd of income of the earning / surviving spouse
In case of other injuries only “general Damage” as applicable.
