Last Monday, I was to Madurai District Court, engaged to conduct a
trial. Waiting for my turn, I watched with amusement an altercation erupted
between an Insurance Officer, deposing in a Motor accident claim and one of my
friends, cross examining him. Cause? The Insurance Advocate, interfering to
protect his witness and dear Officer!
Later, I wondered why my friend had to cross swords with the Officer
that whatever he deposed regarding the breach of policy would not affect the
Claimant. Besides, an insurance officer not privy to the facts involved, except
to certain documents which he would anyway entitled to submit.
It struck me then, for what purpose the Motor Accident Claims Tribunals
were wasting their time, examining the witnesses orally. When Consumer Forums
could decide disputes on affidavits, why not Motor Accident Claims Tribunals?
Section 169 of the Motor Vehicles Act’ 1988 and Rule 25(1) of the Tamil
Nadu Motor Vehicles Accidents Claims Tribunal Rules’1989 enjoin the Tribunals
to follow the procedures of summary trial. In a summary procedure, the
presiding officers to only make notes of the evidence but in cases, the
depositions are recorded with all earnestness as any other trial.
Still, I would think that not summary trial but the procedure as being
adopted in Consumer Forums would suffice to decide a motor accident claim.
In estimating the quantum of compensation, either in fatal or injury
case duly authenticated documents, with supporting affidavits are enough to
calculate the loss. Submission of advance copy of the affidavit and the
documents on income and medical expenses to the insurer will enable the insurer
to have a brief investigation into their authenticity. In all these years I am
conducting accident claims appeals, seldom I refer to what is being ‘extract’ed
during cross examination. In the case of persons doing odd jobs not having any
tangible record of their income, it is always possible to guesstimate!
Is not a life of a person, having a wife and two children worth a
minimum of Rs.200/ per day? When the deceased is shown to be the owner of a
motor-cycle, can’t it be assumed that he would have to Rs.10,000/- per month.
Tribunals are required to be little more proactive and sensitive. In my
opinion, they have a duty to direct the Claimants to bring the documents, which
the Tribunals consider necessary to have a fair estimation of the income of the
deceased.
On the issue of negligence, I find 99% of the cases are decided in
favour of the Claimants. With the interpretation of Section 163A, I doubt
whether this question would remain in vogue in the years to come. Even then, it
is not the oral evidence of the so called ‘eyewitness’ but the Rough Sketch,
prepared by the Police and the outcome of the criminal case etc., are helping
to advance an argument.
Lastly liability, it is incomprehensible why an Insurance officer to be
cross examined as a witness. A casual reading of the provisions of the Motor
Vehicle Act’ 1988 shows what was expected of the insurer is to produce the
Policy and other relevant documents for the Tribunal to decide. At best, an
Insurance official can attend the court to explain, if the Court has any doubt
as to the interpretation of a clause or term. Even this exercise is necessary
only when the Tribunal is not convinced by the Counsel. Far from being a facilitator,
it is worrisome the insurers are taking an adversarial role in the hearing of
the motor accident claims.
Unlike the agreements, we come across in other cases, the Insurance
contracts are in standard printed forms and it is not necessary to find out what
went on in the mind of the person who signed it at the time of entering into
the contract. An interpretation to a particular clause is same in all policies.
In such a case, cross examining an official will not serve any useful purpose.
In all matters involving the driver not having license, the insurers
have to undergo the ritual of summoning an officer from the Regional Traffic
Office and that an officer, leaving his work for a whole day would attend the
Court merely to say an embarrassing “YES’ to a usual question ‘Is that possible
that the driver could have obtained license from any one of the million
Regional Traffic Offices in India’
In my opinion, a Certificate from the RTO would do the same job…
(PS: I would like to hear the description of any
situation, where an oral examination is necessary in a motor accident claim to
test my opinions expressed above)
Madurai
23/03/14
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