WHETHER THE STATE HAS TORTIOUS LIABILITY TO COMPENSATE THE INJURED

OR THE LEGAL HEIRS OF THE VITCTIM, WHEN ACCIDENTS ARE HAPPEN DUE TO
THE BAD CONDITIONS OF OUBLIC ROADS AND PEDESTRAINS PARTIES

SUBMITTED BY

SEETHAL SIDHARTH T

ANGEL ROSE K.S

KATTIKULAM NANDINI
INTRODUCTION:

With the evolution of civilization of human beings, the actions of negligence have become an
actionable error. In English law, any individual or legal associate of the deceased who has passed
away because of the negligent action of others may recoup damages under tortious law in
addition to initiating criminal proceedings. Consequently, the carrying on of negligence by losses
to the other individuals paving the way for institution of action.

The high number of accidents and deaths that take place due to potholes is appalling. There
exists a lot of red-tapism and the authorities often absolve themselves from taking responsibility
in such incidents. Municipal Corporation of Delhi (“MCD”) blames the Delhi Development
Authority (“DDA”), DDA blames some other unknown vehicle and so on. This often leaves the
victims and the law enforcement agencies perplexed about what step to take next. To avoid such
uncertainty, there is a dire need to fix accountability. A strict and express provision exclusively
dealing with potholes should be included in our legislations.

THE MENACE OF POTHOLES

The presence of potholes on the roads of India has resulted in scores of accidents and resultant
deaths. The condition of the roads in India is terrible and the general public ends up facing the
music. The latest figures available on the website of Ministry of Road Transport and Highways
for the year 2018 show that a staggering number of 14,029 road accidents were reported due to
potholes. A disturbing number of  2015 deaths took place all across the country due to injuries
resulting from pothole accidents. That’s the number of reported cases, imagine the number of
unreported ones.

Despite several complaints made by the citizens, the inaction on the part of the road authorities
such as National Highways Authority of India (“NHAI”) and municipalities continues. Instead of
finding solutions, authorities end up blaming each other and worse the road users and allegedly
rashly driven vehicles. Year after year, the problem of pothole becomes even more enormous.
Indeed, the quality of roads in our country is very poor and the situation becomes terrible during
monsoon. Most of the potholes emerge overnight due to heavy rains and become even more
dangerous when the accumulated water makes it impossible to find out if it is a road or a big
dangerous hole lurking out there. This causes a spike in the number of accidents. And even when
the potholes are filled up and fixed, not-so-durable materials are used which results in
resurfacing of the potholes. Therefore, it renders the whole exercise of filling up the potholes
futile.

ENACTMENT OF THE PRESENT DAY LEGISLATION GOVERNING MOTOR

ACCIDENTS

The Motor Vehicles Act, 1988 was passed with a view to consolidating and amending the
legislation relating to motor vehicle accidents. When a statute is passed to reform and change the
law, the Legislature takes into account not only the law when stood but also the legislation that
occurred before it. In 1988, a revised Law on motor vehicles was enacted and Chapter 10 of the
new Motor Vehicles Act provided for temporary relief. Chapter 11 administered for motor
vehicle insurance against third party danger, and Chapter 12 furnishes for the creation of Claims
forum and the adjudication of demands through lawsuits and related cases.

Furthermore, this legislation seeks to regularize the use of Motor Vehicles and to reward people
who are wounded or killed in a crash and family associates and dependents of the victim if
applicable. It is well established that an attempt is made to place the plaintiffs in the pre-
accidental situation in case of motor accident lawsuits. The relief to be awarded are to be
sufficient in terms of cash so that the injured or claimants are placed in the same situation if they
had not suffered the loss due to the respondent's error, however, no amount of indemnity can
recover the accident of limb or sense of pain or damage of life. 1 In 1994, this Act was further
modified. The legislation is still in a time of extreme transition.

The Supreme Court has ruled on several occasions that this is a statute for the interest of the
citizens and that it is appropriate to clarify the provisions of law in order to benefit the
individual. Throughout this process, in the recent past, the Supreme Court passed numerous
judgments which limited the substantive defences of the Insurance Company to a greater extent
as the law relating to the onus of proof was fully amended. Restricted protections in the absence
of a valid driving licence, the use of a car for rent and compensation, the use of a transport

1
Settlement of Motor Accidents Claim with special reference to Kerala,
vehicle for reasons not permitted by a license must be demonstrated in such a clear way that the
claimant does not benefit from such defences.2

MOTOR VEHICLES (AMENDMENT) ACT, 2019

The Motor Vehicles (Amendment) Act, 2019, came into effect on 1st September 2019 and made
rules more stringent for offenders, therefore creating a more rigorous punishment for them. This
amendment has made it difficult for those in the habit of breaking traffic rules. Some examples
of the change that have been brought about are- imprisonment of up to a month for driving errors
and a provision for imprisonment of up to 6 months for accidents caused by rash drivers etc.

Objective

With every step towards increased urbanisation, it is evident that the traffic on roads has
increased. Nowadays, each household in almost every city or town has at least one motor
vehicle. With this increasing traffic on roads the probability of accidents increases. This
probability matches with the reality. The number of road accidents is on the rise. The reasons are
many, like negligent and rash driving, dishonouring the traffic rules, unavailability of an efficient
enforcement mechanism for traffic rules, inefficient traffic police force etc. The Motor Vehicles
Act’s recent Amendment was done keeping in view these factors. 
This Act majorly aims at ensuring road safety, compensation for the victims of accidents, third
party insurance and the health of the vehicles.

Salient Feature Of The Amendment

The important features of the Motor Vehicles (Amendment) Act, 2019 are as under-

Road And Environment Health

In case the vehicles are not fit to be used on roads as they cause environmental damage and
hence harm the health of others, they have to be returned to the manufacturers of the respective
vehicles. The manufacturers through this amendment are directed to take back these vehicles and
have the choice to either reimburse or replace the defective vehicle with one of similar make. 

2
Justice Deepak Gupta, ‘Award of Compensation under the Motor Vehicles Act, 1988 Guiding Principles for Motor
Accidents Claims Tribunals’ <http://hpsja.nic.in/jaarticle.pdf>
Road Safety

This Amendment vehemently propagates the increase in the penalty for traffic rule offenders.
This is done in the hope that this increased fine would force the drivers to be more alert and
careful on the roads. This amendment provides more stringent rules for offences like juvenile
driving, drunken driving, over speeding, overloading and driving without a license. Stricter
punishment for those driving without helmets is also made in this Amendment. 

Fitness Of Vehicle

This Amendment has provisions mandating the automated testing of vehicles for doing a fitness
check. This would help improve road safety by removing from the traffic unfit vehicles. This
Amendment makes specific provision for those who deliberately violate environment and safety
regulations. 

This Amendment promoted certification of automobiles after they were successfully tested. The
regulation of this process of certification was also proposed via this Act. In addition to this,
Amendment of 2019 aims at setting testing standards and bringing the agencies issuing
automotive approvals under the Motor Vehicles Act. 

National Road Safety Board

Another major feature of this Act is the provision for setting up of a National Road Safety Board
under the central government. This board is supposed to advise governments of all the states in
addition to the central government on matters of traffic management and road safety. 

Compensation For Victims Of Road Accidents

Provisions have been made for cashless treatment of victims of road accidents, during the golden
hour. Golden hour is the time period up to one hour from the time of the accident. This is the
time period in which the chances of survival if proper treatment is given, are maximum. An
effort to make this whole process cashless is also made by this Act.
The onus should be placed on the legislature to address this issue and come up with a special
enactment for the same. The existing laws are not enough and one cannot entirely rely upon the
judicial decisions to interpret the same. The duty of the judiciary is only to expound what the
legislature says. A specific law dealing with such cases involving bad road engineering, steep
curves and potholes should be enacted. S. 198A in the Motor Vehicle (Amendment) Act, 2019,
though a progressive step in ensuring liability of erring authorities, fails to make them strictly
criminally liable for the same. The insufficiency of the existing provisions should act as an
impetus to initiate legislative deliberations on this issue.

Protection Of Good Samaritan

This Act defines a Samaritan as a person who stands up for helping out a road accident victim
immediately after such mishappening takes place. It is often seen that these generous people are
the ones who end up being the victim of harassment for their acts of kindness. This Amendment
provides for these people too. It ensures that they are not harmed in any manner whatsoever. It
also protects them from any kind of civil or criminal proceedings, even in cases where they
negligently cause the death of the victim. 

Compulsory Insurance

This Act instructs the union government to establish a Motor Vehicles Accident Fund providing
compulsory insurance to all drivers of India.

Taxi Aggregators

These are defined by the Bill as the intermediaries using a digital platform for connecting drivers
to passengers. These according to these new provisions, are to be provided with licenses from the
governments of the respective states. Also, they are instructed to follow the rules and regulations
of the IT Act, 2000.

National Transportation Policy 

This Act promotes the idea of the formation of a National Transportation Policy. This is to be
made by the Central government in collaboration with the governments of all the states. This
policy would structure a framework for road transport. In addition to this, priorities for the
transport system would be specified. 

Training of drivers

This Amendment strengthens the process of driving training. This would lead to a faster issuance
of licenses. This Amendment comes in the wake of a shortage of commercial drivers in the
country. It propagates the opening up of more driver training institutes for ensuring the
production of better commercial drivers in India.

National Register for Driving licence and Vehicle Registration

This Amendment puts forth harmonisation and integration of issuance of driving licence with
vehicle registration. This would be done by the creation of a National Register for Driving
Licence and National Register for Vehicles with the online portals of ‘Sarathi’ and ‘Vahan’. This
process would ensure the creation of a uniform system of licences and vehicle registration
throughout the country. 

Online Driving Licences 

This Act makes a provision for online issuance of learner’s license, mandating an online identity
verification. This would improve efficiency and limit to a large extent issuance of fake licenses.
In addition to increasing transparency, this Act also provides commercial licenses to be valid up
to a period of five years instead of three years. There would now be driver training schools for
the production of better drivers on roads. 

Motor Vehicles Accident Fund 

A Motor Vehicles Fund would be constituted to provide compulsory insurance to all drivers on-
road by the central government. This fund would be set up to compensate victims of road
accidents and their legal heirs in case of their death. 
Better Insurance Facilities 
This Act states that there exists no cap on liability for insurers. In fact, drivers attendants are now
to be included in third party insurance. There would now be up to ten times increase in
compensation by insurance companies. Provisions have been made to ensure that if the victim’s
family agrees to compensation of five lakhs, the family gets it within a month. The process of
claiming compensation has also been simplified. The minimum compensation for hit and run
cases and cases where the grievous injury is caused has also been increased. 

However, the compensation assessment can be made good but cannot be said to be fool proof.
There are certain hypotheses to be made in each such determination and there is every
probability of difference of opinion among judges in applying from time to time the various
fundamentals affirmed by the Courts. Lord Viscount Simon developed an evaluation system
"Nance's method" more widely known as "discounting system." Lord Wright developed the other
prominent form, known as the “Davis method”.

Existence cannot be taken for granted. Similarly, no human being will place monetary worth of
his leg or of any other human being. How does one evaluate the amount of the damage of all
faculties when some victim loses his mental faculties due to accident and lives in a vegetal state.
Hon'ble Supreme Court evolved a formulation while dealing with a matter. Annual Revenue
Annual spending on deceased provides the amount paid on legal associates. If this balance is
capitalized due to other limitations, the family’s monetary loss can be estimated.

Though refining the above formula in the case of CKS Iyer 3, the Supreme Court claimed that
there is no exact universal method for calculating the worth of human life and calculating loss
cannot be accomplished by a statistical equation, but the recoverable quantity depends on the
prospect of life of the legal associate beneficiaries. The courts can only permit compensation for
the pecuniary and monetary loss caused and some other costs, but no court can even try to
allocate compensation for life-loss or limb loss. Mainly the pecuniary loss must be evaluated.
Nominal losses related to funeral expenses, consortium and conventional damages. Long life
expectancy is tied to earning power.4 With the development of accident claims, the Hon'ble

3
C.K. Subramonia Iyer & Ors v T. Kunhikuttan Nair & Ors AIR (1970) SC 376, (1970) SCR (2) 688
4
B.T Krishnappa vs. Divisional Manager, United Insurance Company Ltd. (2010) 12 SCC 246 & Leela Gupta v
State of Uttar Pradesh (2010) 12 SCC 37
Supreme Court of India found a solution through the milestone judgement of Susamma Thomas 5
and has started to give recognition to the deceased's yearly income. It includes some guesswork,
some hypothetical consideration, some amount of compassion associated with the nature of the
ailment caused, in its very nature whenever a Tribunal or a Court is needed to settle the quantum
of compensation in accident matters.6

This recognition varies from doubling earnings depending on the nature of employment, sex,
career opportunities etc. The Supreme Court held that 1/3 should be subtracted from the costs to
be borne on the deceased after examining and doubling the annual income, and that the leftover
amount should be multiplied by a multiplier depending on the age of the deceased and the legal
heir. The multiplier, accepted as 16 in the matter of Sushma Thomas, had been increased to a
maximum of 18.

But, in a recent Supreme Court judgment, in order to make compensation fair and take into
account the overall multiplier factors was reduced from 16 to 12 in the case of 38-year-old
deceased. In the light of the above case laws, it can be said that the compensation appraisal
should be governed by exercising precedents to the facts and circumstances of a particular
matter.

The Supreme Court in State of Haryana v. Jasbir Kaur observed that, “It has to be kept in view
that the Tribunal constituted under the Act as provided in Section 168 is required to make an
award determining the amount of compensation which is to be in the real sense "damages" which
in turn appears to it to be "just and reasonable". It has to be borne in mind that compensation for
loss of limbs or life can hardly be weighed in golden scales. But at the same time it has to be
borne in mind that the compensation is not expected to be a windfall for the victim. Statutory
provisions clearly indicate that the compensation must be "just" and it cannot be a bonanza; not a
source of profit; but the same should not be a pittance. The courts and tribunals have a duty to
weigh the various factors and quantify the amount of compensation, which should be just.”7

5
General Manager, Kerala State Road Transport Corporation, Trivandrum v Mrs. Susamma Thomas AIR (1994)
SC 1631, (1994) 2 SCC 176
6
R. D. Hattangadi v Pest Control (India) Pvt. Ltd. (1995) 1 SCC 551
7
State of Haryana v Jasbir Kaur (2003) 7 SCC 484
Motor Accident Claim Tribunals (MACT) is bound to dispose of any claim for compensation
concerning the death or physical damage of persons in a road crash resulting from the use of a
motor vehicle. MACT must provide the parties with a convenience to be heard, inspect the claim
and calculate the amount of compensation that appears to be fair and mention the person(s) to
whom compensation is payable. The party responsible for paying the amount so determined by
the MACT shall also be specified as to whom. The Tribunal shall forward a copy of the award to
the party in question within 15 days of the award date. The party ordered to make the
reimbursement of compensation shall deposit the entire quantum of money within 30 days as per
the directives of the Tribunal. The magnitude of losses in fatal accident litigation is the pecuniary
loss incurred and probability to be sustained by each claimant as a result of demise.

Obviously it is true that determining a just compensation cannot be tantamount to a bonanza.

Around the same time, the definition of 'Just Compensation' clearly implies the implementation
by the Tribunals and Courts of equal and equitable standards and a rational solution. On the part
of the Tribunal and the Court, that reasonableness must be on a large peripheral field. Both the
courts and tribunals should be governed by principles of good conscience in the cases of this
application, so that the ultimate outcome becomes just and fair. 8This Court ruled that, it must be
pragmatic in deciding the quantity of reward, and not niggardly in as much as it would respect
life and property on a reasonable basis in the law of a free country.9

The Courts have formulated definitive forms of determining compensation. The measures are as
follows:-

[a] Measure the deceased’s profits towards potential expectations.

[b] Reduction for personal and contemporary expenses of the deceased

[c] Choice of Multiplier

[d] Estimation of Compensation

Compensation payment in matters related to death or grave injury

8
Mrs. Helen C. Rebello and others v Maharashtra State Road Transport Corporation & another AIR 1998 SC 3191
9
Hardeo Kaur and others v Rajasthan State Transport Corporation & another (1992) 2 SCC 567
Under Section 165, Motor Accident Claim Tribunals (MACT) were established in all districts to
facilitate the victim or a victim's survivors to demand compensation against the vehicle's
proprietor and/or driver or insurer. Usually a district magistrate level judge administers over an
MACT. A claim for compensation may be made to a claim adjudicating body having authority
over the area in which the accident took place or to the MACT within whose administration the  
Claimant lives, at the option of the claimant. An application for insurance must be made within
ideally 6 months of the date of the incident. The right of the deceased's legal associate in an
accident case endures regardless of whether the reason of death is related or whether or not the
damage had any connection.

The Supreme Court held that deductions should not be made frantically. It ruled in Santoshi Devi
v. National Insurance Company Limited that, It is also not possible to approve the view taken by
the Tribunal which has been reiterated by the High Court albeit without assigning reasons that
the deceased would have spent 1/3rd of his total earning, i.e., Rs. 500/-, towards personal
expenses. It seems that the Presiding Officer of the Tribunal and the learned Single Judge of the
High Court were totally oblivious of the hard realities of the life. It will be impossible for a
person whose monthly income is Rs.1,500/- to spend 1/3rd on himself leaving 2/3rd for the
family consisting of five persons. Ordinarily, such a person would, at best, spend 1/10th of his
income on himself or use that amount as personal expenses and leave the rest for his family.”10

ENFORCEMENT OF CLAIMS OF DAMAGES AND LIABILITY OF THE

GOVERNMENT:

An operation for claiming compensation may be made by the individual who sustained the
damage or by the proprietor of the vehicle or where death has been caused by the accident by
every or anyone of the deceased's legal associates or by an officer deservedly empowered by the
injured person or by everyone or anyone of the deceased's legal associates. Those individuals not
being dependants but are the legitimate heirs do have the right for getting compensated. But a
person's legal associate, who himself is responsible for reckless and careless driving, is not
entitled to claim compensation.

10
Santoshi Devi v National Insurance Company Limited (2012) 6 SCC 421
To recover the damage under the Act, the owner himself must record the complaint or, in the
event of the owner's demise, his closest kin could file the petition demanding compensation. If
the injured parties of the accident are younger than 18 years of age, they cannot claim for
damages by themselves, they have to file through a lawyer. An applicant may file an application
for a settlement with the Motor Accident Claims Tribunal at the place where the complainant
lives or conducts his business.

In the light of the judgment given by Supreme Court in Manjuri Bera v. Oriental Insurance
Company, the father or the brothers of the deceased party would be eligible to claim
compensation under section 140 of the Motor Vehicles Act, 1988 since the burden under section
140 of the Act does not desist because there is no dependence. Yet his legal heirs can't continue
an appeal filed by the injured claimants for personal injury.

Coming to the liability of the government, as per the Motor Vehicles Amendment Act, 2019 the
government is criminally liable for the same and therefore has the duty to compensate the legal
heirs of the victim financially.

CONCLUSION:

The law of accident claims is fast growing and the amendments to suit the requirement of the
object are necessitated but at the same time interest of those should be watched who are
disbursing the compensation i.e. Insurance Companies. Without affording them right to contest,
imposing liability to make payment cannot be approved by law. Section 170 provides for seeking
permission but this provision can be misused by the owners and claimants in collusion. Presently
because of increasing scale of compensations almost 10 to 15% or even more cases presented to
the Claim Tribunals are fake or the other accidents have been converted into road accidents with
connivance of the police authorities. It is necessary that while increasing the burden of the
Insurance Companies they must get a right of proper contest to mitigate fake cases and also the
quantum.

The time is matured for bringing legislation for award of the fixed compensations as in case of
rail or airways. A person dieing in rail accident can not get beyond Rs. 4 lakh but a person dieing
in road accident can get Rs.4 crore. The payment of compensation based on the vehicle is not
reasonable and a structural basis compensation formula without reference to income or age may
be brought in so that each and everybody can get compensation of their life irrespective of his
poverty or richness. A Scheme should be formulated with the State Police Authorities and the
Insurance Companies by which the Insurance Company must know immediately after happening
of accident and can make necessary investigations. Insurance Company comes in picture when
the claim petition is filed and by that time the evidence can be created to convert the non-
accident into accident and also on quantum. The intention of legislation is to provide just
compensation and not exorbitant compensation. This should always be kept in mind.