Defences in motor accidents claims cases

 

DEFENCES IN MOTOR ACCIDENT CLAIMS CASES

The defences that are available to the insurer and the owner of the vehicle are as follows:

Defences by the insurance company (insurer)

1.     Abatement of claim application.

2.     Non – joinder of necessary parties such as rival claimants, in case of collision of vehicles the other vehicles, insurance company and its owners.

3.     Application has not been made on behalf of or for the benefits of all legal representatives.

4.     Application is bad for mis-joinder of parties.

5.     Claims tribunal has no jurisdiction to try the claim.

6.     Contributory negligence on the part of the victim.

7.     Composite negligence.

8.     Accident due to act of god, alternatively danger, inevitable accident.

9.     Driver of the vehicle was very careful and there was no rash and negligent driving of the vehicle.

10.                        Insurer’s limited liability.

11.                        Diplomatic immunity.

12.                        No subsistence of policy at the time of occurrence.

13.                        Place of accident is not a public place.

14.                        Waiver of claim.

15.                        Withdrawal and abandonment of claim.

16.                        Soverign immunity.

17.                        Accident due to mechanical defect.

18.                        No loss on the death of the deceased to the dependants.

19.                        Damages claimed are excessive and imaginary.

20.                        Expectancy of the life of the deceased was short, due to his age, bodily health, span of life of the claimant’s family

21.                        The driver took all reasonable care to avoid the accident.

22.                        Vehicle prior to the accident had no defect and it was road worthy.

23.                        Vehicle has been transferred by the original owner. (applicable only to the old act)

24.                        The driver of the vehicle died in the accident in the course of his employment.

25.                        Voluntary,  willful act, like the victim in order to commit suicide suddenly flug himself before the vehicle to get benefit to his kith and kin by way of compensation.

Statutory defences.

Sub section (2) of sec 149 speaks the grounds on which the insurer is entitled to defend a third party claim. These grounds are firstly, that there has been breach of a specified condition of the policy, and secondly, that the policy had been obtained on non – disclosure of a material fact or by representation of a fact which was false in some material particular, thereby rendering the policy itself void. In the old act, there had been one more defence dealing with cancellation of a policy by mutual consent or by virtue of any provisions contained in the policy of insurance before the accident has taken place. This defence has been deleted in the new act.

       In Chinnamma George Vs N,K,Raju, (2000 (4) SCC 130 = 2000(2)CTC 252) the supreme court held that the court cannot permit the insurer the right to defend appeal on grounds not available to it under the law. Insurer cannot be allowed to make the mockery of the provision U/S 140(2) by associating in appeal the owner or driver of the motor vehicle concerned, when such owner driver is not an aggrieved person.

       The supreme court has held that the insurer would be entitled only to those defences set out in sec 149 and that too only if he has reserved all the rights of the assured in the policy

      Even in spite of a specific reservation of the defences, under the policy only in cases where an insured remains exparte or is colluding with the claimants the insurer can invoke the defences. In all other cases notwithstanding specific reservation of defences the insurers defences shall only be within the fold of section 149.

   Insurer can  contend that an accident  did not take place in a public place

Driver holding license to drive a light motor vehicle was driving a heavy motor vehicle when he met with an accident. Insurance company was held not liable since validity of licence has to be considered with reference to the vehicle involved.

Defence in appeal:-

The insuance company is not entitled to challenge the finding on negligence and quantum in appeal (New india assurance co.ltd., VS babu 1999 ACJ 887

In National insurance co ltd., VS Nicolletta rohtagi = 2002 (III) ACJ 1950 the supreme court held that even if no appeal is preferred under sec.173 of the act by an insured against the award of the tribunal, it is not permissible for the insurer to  file an appeal questioning the quantum of compensation as well as finding as regard negligence or contributory negligence of the offending vehicle, unless the conditions precedent specified in sec.170 of 1988 act are satisfied. Motor vehicle accident claim is a tortuous claim directed against tort – feasors who are the insured and driver of the vehicle and the insurer comes to the scene as a result of statutory liability created under the motor vehicles act. The legislature has ensured by enacting s.149 of the act that the victim of the motor vehicle are fully compensated and protected. It is for that reason the insurer cannot escape from his liability to pay compensation on any exclusionary clause in the insurance policy except those specified in s.149 of the act or where the condition precedent specified in sec.170 is satisfied. The supreme court overruled the findings in united india insurance co ltd VS Bhushan sachdeva 2002 AIR SCW 273 in which earlier bench of the supreme court held that insurer can contest the appeal on all grounds available to the insured.

Defences for owner:-

Apart from the defences applicable to the insurer, the owner may take additional defences such as:

1.     Driver was not authorized to pick up passengers enroute.

2.     The injured or deceased was neither taken by the driver with his permission nor within his knowledge.

3.     Driver was not an authorized driver.

4.     Driver was not acting during the course of his employment.

5.     Vehicle was not being driven with his consent or for his purpose but for purpose in which he had no interest or concern etc.,

Defences of owner and driver:-

Apart from proving that the victim himself was solely responsible for the accident, normally, the following defences are available to the driver or the owner in an application for compensation filed by the claimants before the tribunal.

1.     Contributory negligence:-

That the accident has been caused partly due to the contributory negligence of the victim. So to that extent the liability of the driver/owner should be extinguished or reduced.

2.     Composite negligence:-

That the accident has been caused solely or mainly or at least partly due to the negligence of another tort – feasor. So to that extent the liability of the driver/owner should be extinguished or reduced.

3.     Latent defect:-

That the accident was an inevitable accident meaning thereby that it has been caused in spite of the full care and caution of the owner and driver of the motor vehicle.

4.     Inevitable accident:-

That the accident was an inevitable accident meaning thereby that it has been caused in spite of full care and caution of the owner and driver of the motor vehicle.

5.     Act of god:-

That the accident was an act of god meaning thereby that it has been caused for reasons which were beyond the control of any human agency.