Automobile Insurance- Claims-2 NEW

8/6/2019 Automobile Insurance- Claims-2 NEW

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TP CLAIMS PROCEDURETP CLAIMS PROCEDURE

Claim on insured thru Motor Act Claims Tribunal(MACT)Claim on insured thru Motor Act Claims Tribunal(MACT)lodged by claimant(injured/heir of deceased) using alodged by claimant(injured/heir of deceased) using alawyerlawyer

Claim filed as suit, imp leading insured and insurerClaim filed as suit, imp leading insured and insurer

On receipt of notice from MACT, a claim is registered byOn receipt of notice from MACT, a claim is registered byInsurer indicating the claim no. , Poliy no., InsuredsInsurer indicating the claim no. , Poliy no., Insuredsname, vehicle no. , date of accident, Driver, name of thename, vehicle no. , date of accident, Driver, name of theclaimant, fatal claim or injury claimclaimant, fatal claim or injury claim

Insurer appoints lawyer to represent both insured andInsurer appoints lawyer to represent both insured and

insurer and the same is noted in the claim registerinsurer and the same is noted in the claim register Insurer call for the various information in regard to the ODInsurer call for the various information in regard to the OD

claim and TP claimclaim and TP claim


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Documents called for from the insuredDocuments called for from the insured -- Policy no. under which vehicle was coveredPolicy no. under which vehicle was covered

Details of OD claim if any, its claim no.Details of OD claim if any, its claim no.

FIR details and police station where the case was registeredFIR details and police station where the case was registered

Drivers name and addressDrivers name and address

Insureds advocate detailsInsureds advocate details

Details of drivers convictions, copy of charge sheet and theDetails of drivers convictions, copy of charge sheet and theCourtCourt

Claim form dully filled in by the insuredClaim form dully filled in by the insured

All relevant documents to be submitted by insured areAll relevant documents to be submitted by insured areverified by insurerverified by insurer

Necessary copies of police report, panchnama andNecessary copies of police report, panchnama andstatements made to police relating to accident are calledstatements made to police relating to accident are calledfrom the police stationfrom the police station


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TP CLAIMS PROCEDURETP CLAIMS PROCEDURE Liability of Insurer depends uponLiability of Insurer depends upon--

The validity of insurance covering the involvedThe validity of insurance covering the involvedvehicle on the date of accidentvehicle on the date of accident

The limit of liability under the policyThe limit of liability under the policy

Drivers statement and statements of the witnessesDrivers statement and statements of the witnessesto the accidentto the accident

Details of Drivers prosecution, charges provedDetails of Drivers prosecution, charges provedand judgment in the criminal caseand judgment in the criminal case

Proof of Contributory negligence of affectedProof of Contributory negligence of affectedpersonperson

Defense under section 149(2) of MV Act, 1988Defense under section 149(2) of MV Act, 1988


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Information about the affected personInformation about the affected person--

PostPost--mortem Report in case of fatal claimsmortem Report in case of fatal claims Medical report in case of injuryMedical report in case of injury

The age of the claimant and his general physicalThe age of the claimant and his general physicalconditioncondition

Occupation/ status, monthly income, dependantsOccupation/ status, monthly income, dependants Nature and extent of injuriesNature and extent of injuries

DisabilityDisability-- duration of temporary disabilityduration of temporary disability Extent of permanent disabilityExtent of permanent disability Opinion of independent medical examinerOpinion of independent medical examiner


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TP CLAIMS PROCEDURETP CLAIMS PROCEDURE-- Insurer to ActInsurer to Act

VerificationVerification of RC, Fitness, use of vehicle and DL if notof RC, Fitness, use of vehicle and DL if notverified for OD claim. If documents found invalid thenverified for OD claim. If documents found invalid theninsured is liable for OD and TP claim and recovery can beinsured is liable for OD and TP claim and recovery can be

pursued against himpursued against him

NegligenceNegligence of the driver or affected TP is relevant to fix theof the driver or affected TP is relevant to fix theresponsibilityresponsibility

OD survey reportOD survey report and claim form to be checked as theyand claim form to be checked as theyindicate the circumstances of the accident and TP damagesindicate the circumstances of the accident and TP damages

RelevantRelevant supporting documentssupporting documents to the TP claim to beto the TP claim to besubmitted in court by claimantsubmitted in court by claimant

Strategy of defenseStrategy of defense in the Court is discussed with thein the Court is discussed with the

advocateadvocate


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TP CLAIMS PROCEDURETP CLAIMS PROCEDURE-- Insurer to ActInsurer to Act

VerificationVerification of police findings, existence of theof police findings, existence of theclaimant injured or legal relation with deceasedclaimant injured or legal relation with deceasedand to pursue for out of court settlement.and to pursue for out of court settlement.

Award passed by courtAward passed by court--generally principalgenerally principal+interest, etc+interest, etc

Out of court/compromised settlements possibleOut of court/compromised settlements possible

Lok Adalats, special courts set up for speedyLok Adalats, special courts set up for speedy

settlementsettlement

Claim payments made by insurer may includeClaim payments made by insurer may includeaward+interest+legal fees+legal and otheraward+interest+legal fees+legal and other costscosts


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DONTSDONTSIN MOTOR CLAIMSIN MOTOR CLAIMS

Leave the accident vehicle unattended atLeave the accident vehicle unattended atspot of accidentspot of accident

Make any compromise/payment with anyMake any compromise/payment with anythird partythird party

Proceed with repairs before surveyors visitProceed with repairs before surveyors visit& assessment& assessment


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NegligenceNegligence

TPL arises dueto negligence by driver or by useTPL arises dueto negligence by driver or by useofthe vehicle.ofthe vehicle.

Negligence is breachofgeneral dutytowardstheNegligence is breachofgeneral dutytowardsthemembersofsocietymembersofsociety

Reckless drivingReckless driving

Ignoringtraffic rules and safteyofpedestriansIgnoringtraffic rules and safteyofpedestrians

Defective vehicles, nonDefective vehicles, non--maintenanceofvehiclemaintenanceofvehicle Leavingmotor vehicle unattended on road orLeavingmotor vehicle unattended on road or

unsafeunsafe


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TPLTPL-- claimantsclaimants

PedestriansPedestrians

FareFare--payingpassengersofthe vehiclepayingpassengersofthe vehicle

NonNon--fare payingpassengersfare payingpassengers-- goodsownersgoodsowners Persons in theother vehiclePersons in theother vehicle

ChildrenChildren-- extra careextra care


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TPLTPL -- Proof of NegligenceProof of Negligence

A)A)ResRes IpsaIpsa LoquitureLoquiture--Thingsspeaksfor itselfThingsspeaksfor itself Circumstantial evidenceCircumstantial evidence-- indicatethattherehasindicatethattherehas

been prima facie negligence and claimants need notbeen prima facie negligence and claimants need not

prove negligenceprove negligence. The moved to pavement.. The moved to pavement.The onus of proofThe onus of proofshiftsfrom theclaimanttotheshiftsfrom theclaimanttothe

driver to provethathewas not negligentdriver to provethathewas not negligent

B)B)Strict liabilityStrict liability-- Ifa vehicle is movingorIfa vehicle is movingorstationery and accident iscaused,theonus isonstationery and accident iscaused,theonus isonthe insured to provethattheclaimantwasthe insured to provethattheclaimantwasnegligentnegligent


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How to rebut alleged negligenceHow to rebut alleged negligence

No fault LiabilityNo fault Liability-- Sec. 140Sec. 140-- Death & PDDeath & PD-- No defenseNo defense Sec. 141Sec. 141-- Claim can also be pursued under other provisionsClaim can also be pursued under other provisions

of Act.of Act.

Sec. 142Sec. 142-- Permanent disablement (privation or permanentPermanent disablement (privation or permanentimpairment of limbs or disfiguration of the head or face)impairment of limbs or disfiguration of the head or face)

Limitations:Limitations: Compensation amount is limitedCompensation amount is limited Rs.50,000 in case of Death &Rs.50,000 in case of Death &

Rs.25,000 for permanent disablementRs.25,000 for permanent disablement

No claim for injury;No claim for injury;

Claim can be either made under Sec. 140 or any other provision or anyClaim can be either made under Sec. 140 or any other provision or anyother Act.other Act.

Amount paid u/s 140 is to be reduced from the Claim amount payableAmount paid u/s 140 is to be reduced from the Claim amount payableunder any other provision or other Actunder any other provision or other Act


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How to rebut alleged negligence.How to rebut alleged negligence.

Fault or strict LiabilityFault or strict Liability-- Sec. 163A:Sec. 163A: Ryland V.Ryland V.Fletcher (1868)Fletcher (1868)-- owner is responsible for anyowner is responsible for anyloss/liability caused by use of his vehicle.loss/liability caused by use of his vehicle.However the following defenses are available:However the following defenses are available:

VolentiVolenti NonNon--fitfit InjuriaInjuria--voluntaryconsentto run avoluntaryconsentto run arisk,the question ofnegligence does not arise,Boardingrisk,the question ofnegligence does not arise,Boardingin or settingdown from a speedingbus,etc.in or settingdown from a speedingbus,etc.

Inevitable AccidentInevitable Accident-- Despitecaution,skill andDespitecaution,skill andreasonablecarethe accidentoccurred.It isto be provedreasonablecarethe accidentoccurred.It isto be provedbythe driver,tobythe driver,to jumbjumb before a movingvehicletobefore a movingvehicletocommitsuicide,etccommitsuicide,etc

Act of GodAct of God-- Storm,earthquake,storm,etc.Storm,earthquake,storm,etc.


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How to rebut alleged negligence.How to rebut alleged negligence.

EmergencyEmergency-- when the injured person has placedwhen the injured person has placedhimselfin endangered position, no negligencehimselfin endangered position, no negligence-- In orderIn ordertosave a pedestrian crossingthe road,the vehicletosave a pedestrian crossingthe road,the vehiclestrayed on theleftcausingaccidentto a cycliststrayed on theleftcausingaccidentto a cyclist

Contributory negligenceContributory negligence byclaimantbyclaimant-- thethecompensation shall be reduced accordingtothe degreecompensation shall be reduced accordingtothe degreeofblame attached tosuch person,the pedestrianofblame attached tosuch person,the pedestriancrossingthe road despitecrossingthe road despite redlightredlight for the pedestriansfor the pedestrians

These defenses are availabletothe insured.These defenses are availabletothe insured.

The defenses availabletotheInsurer areThe defenses availabletotheInsurer areSec. 149(2)Sec. 149(2)and 170and 170

Sec. 149(2) MVAct 1988 saystheSec. 149(2) MVAct 1988 saysthethethe Insurer shall begivenInsurer shall begivennoticeto be a party in thecase and defend it.noticeto be a party in thecase and defend it.


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How to rebut alleged negligenceHow to rebut alleged negligence-- ProvisionsProvisions of Defense ofof Defense of

Claims for Insurer before MACTClaims for Insurer before MACT

Sec. 149(2) of MV Act, 1988Sec. 149(2) of MV Act, 1988

(a)Breachofconditionsofpolicy(a)Breachofconditionsofpolicy-- To be provedTo be proved

Driver notholdinga Valid D/L or disqualifiedDriver notholdinga Valid D/L or disqualified

Useofvehicleother than permittedUseofvehicleother than permitted--

Usefor hireor reward,when not permittedUsefor hireor reward,when not permitted

Organised racingor speed testingOrganised racingor speed testing

Transport vehicle in use againstthe permitTransport vehicle in use againstthe permit M/cyclewhenwithoutsidecarM/cyclewhenwithoutsidecar


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Provisions of Defense of Claims for Insurer beforeProvisions of Defense of Claims for Insurer before

MACT.MACT.

(b) The policy is void on theground ofnon disclosure(b) The policy is void on theground ofnon disclosureofa materialfactor misrepresentation ofmaterialfactofa materialfactor misrepresentation ofmaterialfact--to be provedto be proved

Contributory negligenceofvictim or deceased inContributory negligenceofvictim or deceased in-- faultfaultliabilityliability

The insurer can request MACT to implead u/s 170The insurer can request MACT to implead u/s 170 Sec. 170, if MACT is satisfied thatSec. 170, if MACT is satisfied that -- (a)there iscollusion between the insured and the(a)there iscollusion between the insured and the

claimant,orclaimant,or

(b)the insured hasfailed tocontesttheclaim(b)the insured hasfailed tocontesttheclaim MACT can directthattheInsurer shall be impleaded asMACT can directthattheInsurer shall be impleaded as

a partytothe proceedings and maya partytothe proceedings and maycontesttheclaim oncontesttheclaim onmeritsmerits


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TP LiabilityTP Liability -- DamagesDamages

Monetarycompensation recoverable bythe injuredMonetarycompensation recoverable bythe injured

partyparty-- called as damages (compensation)called as damages (compensation)

Special DamagesSpecial Damages Actualfinanciallossor expensesActualfinanciallossor expensesresultingfromAccident,supportedwith bills,e.g.resultingfromAccident,supportedwith bills,e.g.

medical,surgical,hospitalization expenses,medical,surgical,hospitalization expenses,

lossofsalary and income,funeralexpenseslossofsalary and income,funeralexpenses

General DamagesGeneral Damages Injuries: Compensation for painInjuries: Compensation for painand sufferings, nervousshock, mental agonyand sufferings, nervousshock, mental agony

Lossofexpectation oflifeLossofexpectation oflife Lossofamenitiesoflife,lossofenjoymentoflife,Lossofamenitiesoflife,lossofenjoymentoflife,

physical disability,lossofpromotion,physical disability,lossofpromotion,

lossofmatrimonial prospects,facial disfigurement,etc.lossofmatrimonial prospects,facial disfigurement,etc.


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General DamagesGeneral Damages..

DeathDeath-- Losstothe dependants:financialsupport,Losstothe dependants:financialsupport, Losstotheestateofdeceased :lossofsavings, businessLosstotheestateofdeceased :lossofsavings, business pain sufferingpain sufferinguptilluptill death anddeath and

Lossofexpectation from lifeLossofexpectation from life Assessment is based uponAssessment is based upon

EnglishcaseDavies Vs. Powell. Annual dependencyEnglishcaseDavies Vs. Powell. Annual dependencyamount(on dependants) Xfactor(12amount(on dependants) Xfactor(12--15),or15),or

Nances method.Annuallossto dependant( annualNances method.Annuallossto dependant( annualincomeincome expenseson selfand adjustmentfor otherexpenseson selfand adjustmentfor otherfactors) X multiplierfactors) X multiplier


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General DamagesGeneral Damages

DisabilityDisability-- Pain and sufferingand lossofamenitiesoflifePain and sufferingand lossofamenitiesoflife

Financialloss and expenses incurred,Financialloss and expenses incurred,

lossofearningcapacitylossofearningcapacity

AssessmentofdamagesAssessmentofdamages noformula but basednoformula but basedupon:upon:

West & Sons Ltd. Vs.Shepherd (1964) andWest & Sons Ltd. Vs.Shepherd (1964) and

VinodVinod Kumar Vs.Kumar Vs. VedVed MitraMitra Damages vary accordingtothegravityofinjuryDamages vary accordingtothegravityofinjury Damagesshould be reasonable and comparableDamagesshould be reasonable and comparable


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Property damageProperty damage

Property Damages:Property Damages:

Property damaged:Property damaged:Costofrepairs, depreciationCostofrepairs, depreciation

in valueofproperty dueto accident and costofin valueofproperty dueto accident and costofhiringalternative accommodationhiringalternative accommodation

PropertyDestroyed:PropertyDestroyed:Valueofpropertyon theValueofpropertyon the

dateofaccident and reasonableconsequentialdateofaccident and reasonableconsequential

lossloss --like alternative property,lossofprofitlike alternative property,lossofprofit


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Knock for knock agreementKnock for knock agreement An accident where two vehicles collided are insuredAn accident where two vehicles collided are insured

The negligent owner shall be sued under TP liabilityThe negligent owner shall be sued under TP liability To avoid the hassles of claiming as TP, Insured prefer toTo avoid the hassles of claiming as TP, Insured prefer to

claim from his own insurer and the right to recover againstclaim from his own insurer and the right to recover againstnegligent owner are transferred to insurernegligent owner are transferred to insurer

The other owner (negligent) is also insured and his insurerThe other owner (negligent) is also insured and his insurer

shall pay TP claimshall pay TP claim The claim in such cases shall be settled between respectiveThe claim in such cases shall be settled between respective

insurersinsurers

The negligence of each ownerThe negligence of each owner-- insured is to be provedinsured is to be provedthrough litigation and degree of negligence is to bethrough litigation and degree of negligence is to beestablishedestablished

Litigation is time consuming and expensive,Litigation is time consuming and expensive,

It increases the claim cost and reflected in premium ratingIt increases the claim cost and reflected in premium rating

To avoid all these, Insurers entered into agreement to settleTo avoid all these, Insurers entered into agreement to settleClaim of their own vehicles provided both are insuredClaim of their own vehicles provided both are insured

The agreement is not related to Goods carriage andThe agreement is not related to Goods carriage andPassengers carriage vehicles.Passengers carriage vehicles.


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Loss Control measuresLoss Control measures -- ODOD Immediate appointment of surveyor by the inImmediate appointment of surveyor by the in--

charge of DO or Branch for losses exceedingcharge of DO or Branch for losses exceedingRs.20,000Rs.20,000

The Surveyor should have AutomobileThe Surveyor should have Automobilequalification/Automobile Engineer andqualification/Automobile Engineer and

experienced of assessing motor accident claimsexperienced of assessing motor accident claims Photographs taken by surveyor should havePhotographs taken by surveyor should have

signature of surveyor and datesignature of surveyor and date

Estimates should be from the authorised workshopEstimates should be from the authorised workshop

In case of major loss, the InIn case of major loss, the In-- charge of DO/ BOcharge of DO/ BOshould make surprise visits to find the estimate ofshould make surprise visits to find the estimate oflossloss

Same surveyor should not survey further loss underSame surveyor should not survey further loss underthe same policythe same policy


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Loss Control measures..Loss Control measures..

Survey of taxis and commercial vehicles shouldSurvey of taxis and commercial vehicles shouldalso be examined by the Company engineersalso be examined by the Company engineers

during repairs and also conduct surpriseduring repairs and also conduct surprise

inspectioninspection

Work allocation to surveyor should be on rotationWork allocation to surveyor should be on rotation

basisbasis

Surveyors should be changed after 02 yrs.Surveyors should be changed after 02 yrs.

The selection of competent motor surveyor shouldThe selection of competent motor surveyor shouldbe carefully made by Empanelment Committeebe carefully made by Empanelment Committee

Surveyors should deduct appropriate salvage valueSurveyors should deduct appropriate salvage value

for the damaged parts from the assessed amountfor the damaged parts from the assessed amount


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Final SurveyFinal Survey--

Final survey should be done only at the workshopFinal survey should be done only at the workshopwhich prepared the estimatewhich prepared the estimate

Under insurance should be taken seriouslyUnder insurance should be taken seriously For commercial vehicle the surveyor shouldFor commercial vehicle the surveyor should

mention material cost and labour chargesmention material cost and labour chargesseparately for cabin and for bodyseparately for cabin and for body

Major parts should be identified, like chassis, frontMajor parts should be identified, like chassis, front

axle, etc and mentioned in the reportaxle, etc and mentioned in the report ReRe--inspection of replacement of parts after repairsinspection of replacement of parts after repairs

carried should be done by any other surveyorcarried should be done by any other surveyor


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Loss Control measures.Loss Control measures.

Role of Surveyor is very importantRole of Surveyor is very important He should visit the workshop during repairs are beingHe should visit the workshop during repairs are being

carried outcarried out

Scrutinise the bills for their authentic valueScrutinise the bills for their authentic value

In case of valid doubts or assessment on higher side,In case of valid doubts or assessment on higher side,

another surveyor can be deputed to examine or reassess theanother surveyor can be deputed to examine or reassess theloss.loss.

Appropriate action should be taken against the erringAppropriate action should be taken against the erringsurveyorsurveyor

Insurers own claim engineer should monitor the motorInsurers own claim engineer should monitor the motor

claims, survey reports, loss assessments.claims, survey reports, loss assessments. Major claims should be intimated to Regional office andMajor claims should be intimated to Regional office and

Insurers claim engineer should be involved with theInsurers claim engineer should be involved with thedeputed surveyor for loss assessment.deputed surveyor for loss assessment.

Motor claims should be subject to technical audit andMotor claims should be subject to technical audit andsurprise visits at workshopssurprise visits at workshops


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Salvage ValueSalvage Value--

Salvage of total loss vehicles which are beyond repairsSalvage of total loss vehicles which are beyond repairs

should be disposed off and RC book and other documentsshould be disposed off and RC book and other documents

surrendered to RTAsurrendered to RTA

Salvage of uneconomical repair vehicles should be soldSalvage of uneconomical repair vehicles should be sold

with RC bookwith RC book

Assessment of Salvage value should be appropriately doneAssessment of Salvage value should be appropriately done

to minimise the lossesto minimise the losses


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Loss Control measuresLoss Control measures --TPTP

On getting information or FIR, investigation should be gotOn getting information or FIR, investigation should be gotconducted through exconducted through ex--police officer to find thepolice officer to find thecircumstances, evident and cause of accidentcircumstances, evident and cause of accident

The correctness of insurance policy and vehicle particularsThe correctness of insurance policy and vehicle particulars

should be checked carefully and got verified fromshould be checked carefully and got verified fromconcerned RTAconcerned RTA

Relevant information about the Persons affected byRelevant information about the Persons affected byaccident, their income, status, family members, dependantsaccident, their income, status, family members, dependantsand earning members should be gatheredand earning members should be gathered

Out come of investigations carried out by Police should beOut come of investigations carried out by Police should beobtainedobtained

A panel of Advocates ( 3 to 8) of good standing andA panel of Advocates ( 3 to 8) of good standing andexperience not less than 5 yrs should be utilised to defendexperience not less than 5 yrs should be utilised to defendthe TP cases on behalf of Insurerthe TP cases on behalf of Insurer


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Loss Control measuresLoss Control measures--TP.TP.

TP cases should be allotted on rotation basisTP cases should be allotted on rotation basis Not more than 10 cases should be pending with anNot more than 10 cases should be pending with an

advocateadvocate

Investigation Report arranged by Insurer andInvestigation Report arranged by Insurer and

necessary copies of Insurance policy, driver andnecessary copies of Insurance policy, driver andvehicle particulars should provided to advocatevehicle particulars should provided to advocate

The incharge of the Insuring office should monitorThe incharge of the Insuring office should monitorthe development of the legal case. The strategy ofthe development of the legal case. The strategy of

defence should be discussed with the advocatedefence should be discussed with the advocatefrom time to time.from time to time.


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Loss Control measuresLoss Control measures-- TP..TP..

Defence in MACTDefence in MACT--

A written statement in regard to defence of the case shouldA written statement in regard to defence of the case shouldbe submitted by advocate to Divisional Incharge discussbe submitted by advocate to Divisional Incharge discussthe casethe case

Breach of policy conditions,Breach of policy conditions, D/L particularsD/L particulars

Sec. 149 (2)Sec. 149 (2)

Sec. 170Sec. 170

The negligence on the part of injured person or deceasedThe negligence on the part of injured person or deceased

person should be taken up with the Court very carefullyperson should be taken up with the Court very carefullybased on evidences to reduce the compensation amountbased on evidences to reduce the compensation amount

Legal officer of the DO/RO should attend the proceedingLegal officer of the DO/RO should attend the proceedingof the TP cases in the MACT court and assess theof the TP cases in the MACT court and assess the

performance of advocatesperformance of advocates


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Loss Control measuresLoss Control measures-- TP.TP.

Settlement of AwardSettlement of Award--

Awards under the No fault or negligent liabilityAwards under the No fault or negligent liabilityshould be deposited with the Court at the earliestshould be deposited with the Court at the earliest

before 30 days of the award to avoid interestbefore 30 days of the award to avoid interestpayment on award amount.payment on award amount.

Appeal against the MACT award may be filedAppeal against the MACT award may be filedwhen the award amount is unreasonable, morewhen the award amount is unreasonable, more

than 01 lacs and substantial points of law arethan 01 lacs and substantial points of law areavailable to defend the case.available to defend the case.


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Loss Control measuresLoss Control measures-- TP.TP.

Out of Court SettlementOut of Court Settlement--

The pending TP cases should be scrutinised fromThe pending TP cases should be scrutinised fromtime to time and cases where the liability oftime to time and cases where the liability of

Insurer is beyond doubt, should be taken up inInsurer is beyond doubt, should be taken up inLok AdalatLok Adalat

More and more cases should be taken in LokMore and more cases should be taken in LokAdalat to compromise at minimum compensationAdalat to compromise at minimum compensation

and also reduce the legal expenses and interestand also reduce the legal expenses and interestamountamount


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