Motor insurance is the biggest and fastest-growing portfolio in the Indian general insurance market. There has been an alarming increase in road accidents during recent years.
Every year approximately 84 thousand people die in an accident and several suffer serious injures. This increase in numbers of claims in third party section – increase in lawsuits – are mainly due to the amended provisions of motor vehicle act 1994 such as (a) doing away with the limitation period for filing claim petition, (b) jurisdiction for filing petition anywhere in India, etc.
The above scenario certainly makes it challenging for the insurance companies to take steps to drive this motor business towards the direction of improving its profitability. Careful and sensible underwriting and an all-out effort to control the third party portfolio as it is today can show encouraging results. Mishandling, uncalculated efforts by insurance officials may result in awards against the Company and leaving no scope of appeal in higher courts especially due to the mishandling of the file at the initial stage.
The insurer to keep control over the Third Party Claims must act immediately on receipt of notice from insured and must act in the following manner:
(A) To confirm the policy & 64 VB compliance.
(B) Appoint Investigator
(C) Depute the Advocate.
Before the above-stated steps, the primary requirement is to get the relevant documents related to the case first i.e. the Insurance cover note /certificate, Registration certificate of the vehicle involved in an accident, FIR, MLC, Driving license, Statement of eye-witness, Post-mortem report, Mechanical Inspection Report. These documents are important as they help in clearing the involvement in the case of a respective vehicle, finding any breach of condition, if any, about the facts of the accident, actual injuries suffered by the claimant.
After happening of any road accident, the Police reaches the spot of accident and registers the case and seizes the required documents and prepares the list of seized documents called a Seizure Memo. To get these documents one must not go the other way round, it is the duty of the Police. i.e. the I.O. of the case to deliver the said documents to the insurer within 30 days as according to Section -158(6) of the Motor Vehicle Act, 1988.
- Production of certain certificates, license, and permit in certain cases. – (1) Any person driving a motor vehicle in any public place shall, on being so required by a police officer in uniform authorized in this behalf by the State Government, produce-
(a) The certificate of insurance;
(b) The certificate of registration;
(c) The driving license; and
(d) In the case of a transport vehicle also the certificate of fitness referred to in Section 56 and the permit, relating to the use of the vehicle.
(6) As soon as any information regarding any accident involving death or bodily injury to any person is recorded or report under this section is completed by a police officer, the officer in charge of the police station shall forward a copy of the same within thirty days from the date of recording of information or, as the case may be, on completion of such report to the Claims Tribunal having jurisdiction and a copy thereof to the concerned insurer, and where a copy is made available to the owner, he shall also within thirty days of receipt of such report, forward the same to such Claims Tribunal and insurer.
In the case of ALL INDIA LAWYERS ASSOCIATION. Vs. UNION OF INDIA
Delhi High Court had given clear directions to the police officials to forward a copy of documents (as above stated) to the claim tribunal, insurer and the owner of the vehicle involved in the accident within 30 days. Non-compliance of which may put them behind the bars as per Section – 179 of the MV Act which states
DISOBEDIENCE OF ORDERS, OBSTRUCTION, AND REFUSAL OF INFORMATION
(1) Whosoever willfully disobeys any direction, lawfully given by any person, or authority empowered under the M.V. Act to give such direction, or obstruct any person or authority in the discharge of any function which such person or authority is required or empowered under this Act to discharge, shall, if no other penalty is provided for, the offense be punishable with fine which may extend to five hundred rupees.
(2) Whoever, being required by or under this Act to supply any information, willfully withholds such information or gives information which he knows to be false or which he does not believe to be true, shall, if no other penalty is provided for the offense, be punishable with imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both.
After receiving the documents, the role of the Investigator becomes crucial, hence clear cut directions must be given to him about his role for complying with the following:
- To know the genuineness of the claim
- Real facts of the case
- Independent verification of vehicle particulars, age, occupation, and income of the deceased, details of minors, verify the hospital records for post mortem reports/injury/expenses incurred, etc.
Verification of the documents is made to know that the assertion made by the claimants is genuine or not. And if any frivolous or false documents are being procured/presented by the claimant or insured, then such defense must be taken in the claim tribunal.
In most cases it is being seen that Investigating Officer does not ascertain the real facts and merely acts based on the FIR, Criminal record, etc., due to these limited steps the entire process gets defeated.
In the case of death claims, for instance, the widow of the deceased wants to file the case but parents do not want to file or vice-versa. What are the remedial measures available to the claimant under such circumstances? Will such a stand affect the insurance company in the future? What are the steps or what directions Insurance Officials must give to the Investigating Officials? Under these circumstances, Section -166 of Motor Vehicle Act, 1988 provides for application for compensation.
APPLICATION FOR COMPENSATION AS per 166 of MV ACT
(1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of Section 165 may be made-
(a) By the person who has sustained the injury; or
(b) By the owner of the property; or
(c) Where death has resulted from the accident, by all or any of the legal representatives of the deceased; or
(d) By any agent duly authorized by the person injured or all or any of the legal representatives of the deceased, as the case may be:
Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application.
PURPOSE-While awarding the compensation, this fact must be brought to the notice of the Tribunal, so that the persons who have not joined as claimants/ petitioners, will be Summoned by the Tribunal (say Parents) and in case they say that they are entitled to the compensation, they plead before the tribunal and if not, then they will proceed as Ex-parte. Once the petition has to be decided, it should be decided for all. That’s why the legislature has inserted this provision.
Insurance Officials must be careful about this fact that all claimants have been joined as parties to the claim. Hence this is one of the prime duties of the Investigating Officer to check that all the Legal Representatives have appeared or else it will give trouble at the time of Evidence.
It is, therefore, necessary that before filing the Written Statement it must be ascertained that all Legal Representatives have joined as parties, an application must be filed to implead all beneficiaries otherwise the petition is not maintainable. So, any lacuna on behalf of the Investigating Officer may lead to an increase in the claim ratio and the purpose of appointing the Investigating Officer would be wasted. Insurance Officials have to keep the check whether:
(1) The reports are being submitted at the earliest with complete details and required documents.
(2) About the status of the deceased and his LR’s.
(3) About the genuineness of the documents filed by the claimants like income proof, age proof, etc.
(4) About the report, if in our favor, must be filed along with his affidavit of evidence.
When you are going to defend the case, you should be aware that where you can escape from your liability. But if you are not up to mark to the norms of the investigation, it may create a mess. When the investigation report is received, you have to analyze it, whether it is in the right perspective, covers all relevant facts or not.
IMPORTANCE OF WRITTEN STATEMENT-
All investigations should be done in a time-bound manner & all details are made available to the advocate to file written statements in the company’s defense. It should be carefully studied and to be signed by the company’s in-charge failing which penalty shall be imposed as per section 172 of the MV Act.
CONSEQUENCES OF the WRONG ASSERTION IN LAW:
172 AWARD OF COMPENSATORY COSTS IN CERTAIN CASES.
(1) Any Claims Tribunal adjudicating upon any claim for compensation under this Act, may in any case where it is satisfied for reasons to be recorded by it in writing that-
(a) The policy of insurance is void on the ground that it was obtained by the representation of fact which was false in any material particular, or
(b) Any party or insurer has put forward a false or vexatious claim or defense, such Tribunal may make an order for the payment, by the party who is guilty of misrepresentation or by whom such claim or defense has been put forward of special costs by way of compensation to the insurer or, as the case may be, to the party against whom such claim or defense has been put forward.
(2) No Claims Tribunal shall pass an order for special costs under sub-section (1) for any amount exceeding one thousand rupees.
(3) No person or insurer against whom an order has been made under this section shall, by reason thereof be exempted from any criminal liability in respect of such misrepresentation, claim or defense as is referred to in sub-section (1).
179 DISOBEDIENCE OF ORDERS, OBSTRUCTION, AND REFUSAL OF INFORMATION:
(2) Whoever, being required by or under this Act to supply any information, willfully withholds such information or gives information which he knows to be false or which he does not believe to be true, shall, if no other penalty is provided for the offense, be punishable with imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both.
In Indian Penal Code:
Section -21 clause 12- defines PUBLIC SERVANT, which covers all insurance employees as held in STATE .v. O.P.DOGRA (1985) 4 SCC 319 which states that The employees of LIC & GIC have held to be Public Servant within the meaning of clause-12. Any false statement made in declaration which is by law receivable as evidence (Section-199) or Dishonestly making false claim in court. (Section -209) are punishable under the INDIAN PENAL CODE.
Time for filing the written statement is 30 days as provided by the civil procedure code. It provides time to you for conducting the proper investigation so that it prevents the consequence of filing the wrong Written Statement and facing of the above-stated charges. Before signing the written statement be fully aware of the facts and denials asserted in the written statement. One must not go in the numbers of pages of the written statement but to the contents, which matters, even 2 pages written statement is sufficient rather than wrong written in 6-7 pages.
POINTS TO BE CONSIDERED WHILE PREPARING THE WRITTEN STATEMENT:
- As per the Supreme Court ruling in “United India .v. Asha Rani” compensation is to be assessed on net income.
- Ascertain the dependency of the deceased.
- An application under section -170 of the M V ACT, 1988, should have been applied for and obtained as per the circumstances the case. As per the ruling in Nicoletta Rohtagi .v. NIC -i.e. appeal on merits has not been allowed unless an application under section-170 is moved and order is obtained.
- Obtain the salary particulars and income tax return for the last 3 to 5 years, as the case requires.
- In cases of injuries, the claimant must be put under the strict proof of expenses incurred on medicines, special diet, conveyance, loss of salary, etc.
The above considerations, if adhered to, can go a long way in improving the position of Motor Third Party Claims and minimizing the claim ratio against the insurance company.
By Mr. Abhishek Kumar, Delhi, Published in The Insurance Times, September 2005
