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Report No. 85

3.44. Arguments against no fault liability.-

The major points advanced by those who would like the system of liability based on "fault" to continue may be stated in outline as follows:-

(i) First, it is stated that the system of negligence is not designed to compensate for all losses and should not be regarded as deficient merely because it fails to provide compensation for certain accidental losses. In other words, a distinction should be made between more deserving and less deserving victims. A standard of negligence (it is stated) most nearly approaches the popular concept of justice. The essential soundness of this approach, as a general rule, cannot be doubted. But in the field under consideration, there are certain special factors which seem to justify modification of the general approach.

(ii) Secondly, it is stated that moral accountability, which is a fundamental tenet of the common law system should not be undermined to meet the exigency of the situation. In reply to this, it could be stated that the approach to be adopted is not merely of moral accountability, but one of social justice, including the reason that he who creates a risk ought to attract liability to compensate though upto a certain pecuniary limit-for the attendant harm1.

(iii) Thirdly, it is often stated that the principle of negligence deters careless conduct and its removal would cause an increase in careless driving and accidents. This, however, does not appear to be borne out by experience in other fields-such as workmen's compensation or railways-where liability is either understood to be absolute or specifically laid down to be so.

(iv) Fourthly, it is stated that if social justice is the basic approach, then there ought to be rather a system of social welfare applicable preferably to all deserving persons and not merely to victims of automobile accidents. Somewhat based on the same approach is the contention often advanced that the problem of delay in courts and tribunals ought to be tackled comprehensively and not merely by concentrating on motor vehicles claims.

This is an attractive argument, and, upto a point, it is even sound. But it is to be pointed out that the disproportionately high cost and undue delay which is met with in the field under consideration justifies a selective approach.

1. See further para. 3.62(a), infra.

Claims for Compensation under Chapter 8 of the Motor Vehicles Act, 1939 Back

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