Report No. 201
Current Legal Framework:
So far as current legal framework is concerned, in spite of the fact that rash and negligent driving of a motor vehicle falls within the scope of section 304-A of the Indian Penal Code, 1860 where imprisonment may go upto 2 years accidents due to negligent driving of motor vehicles have not stopped. Of course if it amounts to culpable homicide or murder under section 299 read with section 300, the punishment under sections 302 or 304 may extend to life imprisonment or 10 years.
Initially, in 1978, a Bill was introduced in the Rajya Sabha and was passed on 23.2.1978 which referred to amendment of section 304-A. It not only recommended increase in punishment from 2 years to 5 years, it proposed a new section 304B for drivers who runaway without informing police within a reasonable time, that the punishment must be 7 years imprisonment.
This Bill was not passed by the then Lok Sabha on account of its dissolution.
Later, the Bill was referred to the Law Commission and in the 156 th Report the above amendments were reiterated. So far as section 304B is concerned, because another section with that number had already been inserted, the Commission recommended a change in the number as section 304B.
The Motor Vehicle Act, 1988 contains a whole chapter on "Accident Compensation" which includes a provision for no fault liability, currently fixed at Rs.50,000/- if death is caused or Rs.25,000/- if it causes injury. This is intended to help tide over immediate financial problems. There is, of course, provision for compensation for negligently killing or injuring any person. There is vast legal literature as to the manner of computing compensation. Under an 'Act-policy' provision contained in the said Act, Insurance Companies which issue policies have to cover certain mandatory risks. Lok Adalats and Motor Accident Claim Tribunals, all over the country provide remedies for payment of compensation for death or injury.
In the 178th Report of the Law Commission (2001), a lacuna in the law pointed by the High Courts in several judgments was sought to be remedied. But Parliament has not yet implemented the same recommendation. We propose to reiterate that amendment. The problem is that if a person who is injured and has claimed compensation dies as a consequence of the injury, while the claim is pending before the Claims Tribunal, the proceedings abate and the deceased's estate represented by his legal representatives get nothing. The benefit of the abatement goes to the tort-feasor.
This is happening in a number of cases. The Law Commission has, therefore, recommended an amendment which allows the proceedings to be continued by the legal heirs of the injured person who has died during the pendency of the litigation.
So far as 'emergency medical aid' is concerned, we have referred to the judgment of the Supreme Court in Parmanend Katara and other cases decided by the National Consumer Redressal Forum. Apart from these, there are some special provisions introduced into the Motor Vehicle Act, 1988.
Section 134 of the Motor Vehicles Act, 1988 imposes a duty on the driver of the vehicle and of the doctor and hospital who are approached. Section 187 creates an offence if section 134 is not complied with. Section 134 reads as follows:
"Section 134: Duty of Driver in case of accident and injury to a person: When any person is injured or any property of a third party is damaged as a result of an accident in which a motor vehicle is involved, the driver of the vehicle or other person in charge of the vehicle -
(a) unless it is not practicable to do so on account of mob fury or any other reason beyond his control, to take all reasonable steps to secure medical attention for the injured person, by conveying him to the nearest medical practitioner or hospital, and it shall be duty of every registered medical practitioner or the doctor on duty in the hospital immediately to attend to the injured person and render medical aid or treatment without waiting for any procedural formalities, unless the injured person or his guardian, in case he is a minor, desires otherwise;
(b) give on demand by a police officer, any information required by him or, if no police officer is present, report the circumstances of the occurrence, including the circumstances, if any, for not taking reasonable steps to secure medical attention as required under clause (a) at the nearest police station as soon as possible, and in any case within twenty-four hours of the occurrence ;
(c) give the following information in writing to the insurer, who has issued the certificates of insurance, about the occurrence of the accident, namely:-
(i) Insurance policy number and period of its validity;
(ii) Date, time and place of accident;
(iii) Particulars of the persons injured or killed in the accident;
(iv) Name of the driver and the particulars of driving licence.
Explanation: For the purposes of this section, the expression "driver" includes the owner of the vehicle."
Under section 187 of the said Act, whoever fails to comply with the provisions of the various clauses of section 134, shall be punishable with imprisonment for a term which may extend to three months, or with which may extent to Rs.500/- or with both. If it is a second time such an offence is committed by a person, the punishment by imprisonment may extend to six months or with fine which may extend up Rs. 1000/- or with both.
But, in a large number of cases, which are known as he 'hit and run' cases, the driver who runs away under cover of darkness or when he speeds up and runs away or when there is nobody in the vicinity to note down the number of the vehicle, or where the injured person not being in a fit condition to note the number, the unfortunate position is that the driver or the vehicle number is not traceable. In such situations, the above provisions of section 134 or 187 of the Motor Vehicles Act, 1988 are not helpful. The serious apathy of the runaway tort teaser cannot be easily remedied.
Further, the above provisions of the Motor Vehicles Act do not cover accidents due to other transport vehicles, like carts, cycle rickshaw, etc. Nor does it cover victims of fire, flood, etc.
In addition, passers by who witness the accident fear harassment by police and are not willing to take the victim to a hospital or report to the police. They do not want to be called to the police station or to the Court for their statements or evidence to be recorded.