LAW RESOURCE INDIA

Get tough with ‘killers on wheels’: Supreme Court

Posted in CRIMINAL JUSTICE SYSTEM, EVIDENCE, HUMAN RIGHTS, MOTOR VEHICLE ACT, RIGHT TO LIFE, RIGHTS, VICTIMS by NNLRJ INDIA on January 13, 2012

Supreme Court of India

Expresses concern at rising number of deaths in road accidents

Expressing serious concern over the rising number of deaths in road accidents, the Supreme Court on Thursday called for revisiting the sentencing policy to ensure harsh punishment for the ‘killers on wheels’.

Upholding the three-year jail sentence awarded by the Bombay High Court to Alister Anthony Pareira for causing the death of seven persons when his car ran into the pavement in Mumbai, a Bench of Justices R.M. Lodha and K.S. Khehar said the punishment must be in proportion to the crime.

Writing the judgment, Justice Lodha said, “The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should “respond to the society’s cry for justice against the criminal.”

Drunken driving

The Bench said: “The World Health Organisation, in the Global Status Report on Road Safety, has pointed out that speeding and drunk driving are the major contributing factors in road accidents. According to National Crime Records Bureau [NCRB], the total number of deaths due to road accidents in India every year is now over 1,35,000. The NCRB report also states drunken driving as a major factor for road accidents.”

It said the country had the dubious distinction of registering the highest number of deaths in road accidents. “It is high time lawmakers revisit the sentencing policy reflected in Section 304 A IPC [death due to negligence]. It is true that the appellant has paid compensation of Rs. 8,50,000 but no amount of compensation could relieve the family of victims from the constant agony. As a matter of fact, the High Court had been quite considerate and lenient in awarding to the appellant a sentence of three years for an offence under Section 304 Part II IPC [death caused by driving] where seven persons were killed.”

According to the Bench, “the facts and circumstances of the case which have been proved by the prosecution in bringing home the guilt of the accused under Section 304 Part II IPC undoubtedly show despicable aggravated offence warranting punishment proportionate to the crime. Seven precious human lives were lost by the act of the accused. For an offence like this which has been proved against the appellant, the sentence of three years awarded by the High Court is too meagre and not adequate but since no appeal has been preferred by the State, we refrain from considering the matter for enhancement.”

“Travesty of justice”

On the plea for letting the appellant off with the sentence already undergone i.e. two months in a case like this, the Bench said “in our view, it would be travesty of justice and highly unjust, unfair, improper and disproportionate to the gravity of crime.”

It said: “We are satisfied that the facts and circumstances of the case do not justify benefit of probation to the appellant for good conduct or for any reduction of sentence. The appeals are, accordingly, dismissed. The appellant’s bail bonds are cancelled. He shall forthwith surrender for undergoing the remaining sentence as awarded by the High Court in the judgment dated September 6, 2007.”

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Vehicle insurance barriers

Posted in MOTOR VEHICLE ACT by NNLRJ INDIA on January 20, 2010

M J Antony in THE BUSINESS STANDARD / New Delhi January 20, 2010, 0:17 IST

If the lawmakers periodically review old laws, the court’s burden would be lighter

The rate of road accidents in India is so high that the chances of getting run over by a motor vehicle are higher than those of winning a bet at the club. No wonder, then, that the motor accident claims tribunals are as crowded as crossroads in a city. The Motor Vehicles Act of 1988 has thrown up several problems over the years and they have reached a dead end. Therefore, the Supreme Court decided, a few days ago, to sort out nearly 20 issues that were more common .

Some of the questions that are on the court’s list for immediate attention are: The liability of insurance companies when the driver of the vehicle that was involved in an accident had no valid licence at the time of the mishap; passengers injured while travelling in a goods vehicle; claims of guests in a passenger car; overloading of vehicles and bouncing of cheques paid as compensation. Dishonour of cheques is so common that this would be the first issue to be taken up.

Assessment of damages to compensate the dependents is beset with difficulties because the exercise involves consideration of several imponderables. These may include the life expectancy of the victim, his earning capacity and the number of years he would work; the amount he would have contributed to his dependents; the chances that the deceased may not have lived long or the dependents may not have lived up to the estimated life expectancy; the chances that the deceased might have got a better job or lost his job. All these have to be weighed by the tribunal before awarding the compensation.

However, there are several other problems raised by the Motor Vehicles Act itself. There is a large set of cases dealing with Section 149. Insurance companies have been asked by tribunals and courts to compensate third parties who are, in fact, unauthorised, gratuitous passengers travelling in the vehicle involved. The judgments in these cases have yielded varied results. Insurance companies have, therefore, taken the issue to the Supreme Court for the final word.

Another batch of appeals moved by insurance companies seeks a definitive judgment on Sections 146, 147, 149 and 166. These provisions deal with overloading of bus and rash and negligent driving; violation of the terms and conditions of the insurance policy; whether the insurance company is liable to pay compensation to representatives of the injured and dead persons in a public transport vehicle which was overloaded.

The next batch of insurers’ appeals insists that they are not liable to pay compensation when the driver of the offending vehicle had no valid and effective licence or carried a fake one. Sometimes, the owner is not aware of the expiry of the licence or is not competent to decide whether the licence was genuine. If the insurance company does not pay, the owner has to pay the hefty compensation from his resources.

When the cheque for payment of premium is dishonoured and the accident happens during the disputed period, will the insurance company be liable in view of the provisions Section 146 of the Motor Vehicles Act and Section 64VB of the Insurance Act? This is also a grave question raised by the insurance companies.

The problem haunting accident cases in the context of the second schedule of the Motor Vehicles Act was crying for an answer for nearly two decades. The formula laid down in the schedule has been ridiculed by the Supreme Court in several cases, starting from UP State Road Transport Corporation vs Trilok Chandra case. The figures do not add up. The compensation arrived at does not take into account inflation. On the other hand, another set of judgments — like that in Kaushanuma vs New India Assurance case — praised the formula and remarked that it was a “safer guide than any other method”. Now the court has to say whether the method should be followed or not by the tribunals.

If a person travelling in a private car dies in the accident, will the insurance company be liable to pay compensation? This is a common question on which an authoritative pronouncement is required. In these days of terrorism and armed robbery, a legal dilemma has arisen about the murder of the driver and abandonment of the vehicle. Some courts have held that it would be an “accident” and, therefore, the insurer would be liable. Some others do not think so.

There are already several questions referred by smaller benches to larger benches waiting for hearing. Can the tribunal ask the insurer to pay the dependents even when it is not liable and recover the amount from the owner? The courts have given different answers. Such questions also will be considered by the court next month onwards. How many more questions will be gathered on the way is a moot point. If the lawmakers had taken periodic looks at the law, the burden of the courts would have been lighter. But such is not the practice.

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