Live Law N I Act and MACT: March 2018

Thursday, March 29, 2018

Driving Licence Renewal

Driving Licence Renewal

On March 27, 2018 By

Driving Licence Renewal

One of the momentous milestones in life is when you get your very own Driver’s License. The euphoria of freedom to drive around your own vehicle and go wherever you wish to is definitely a joy to thrive on. Though you might grow out of this or even take it for granted in time, the difficulties in procuring one is not easily forgotten. Having a license alone is not enough- there is also the matter of timely renewal of said driving licence. These renewals are devised to ensure that your eligibility to keep on driving isn’t hampered by advancing age or any other foreseen/unexpected conditions. Just because one was fit enough to acquire a license 20 years ago, need not mean he/ she is fit now. And yes, driving around with an expired license is as good as doing the same without one, and may be a potential problem for you, other drivers and pedestrians. Hence the licence needs to be renewed after a stipulated term.

Why should you renew your driving licence?

As per the Indian Motor Vehicles Act, 1988, it is mandatory for drivers of any vehicle to hold a valid driving licence to drive a vehicle on the road. A Driving licence is an official document issued by the government, which authorises an individual to drive a category of vehicle for which he holds a licence. This document is also acknowledged as a valid identity proof.It is a must to renew your DL after its expiry because as per the law nobody in India can drive any vehicle without a valid DL. As per Section 177 of the Motor Act, 1988, if a person is driving a vehicle without a valid DL (i.e an expired DL), is a punishable offence by law. Violators of the same are liable to be fined.

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An expired driving licence is valid only for a month (i.e 30 days) post expiration and can needs to be renewed within that grace period. If your driving licence has expired more than 30 days ago, you can renew the same by paying a penalty. This holds true if only the application requesting a renewed DL is made within a time span of five years from the date of expiry. If the licence has been initially obtained from another state, then the applicant should furnish a No Objection Certificate (N.O.C.) and confirmation of driving licence issued by the original licensing authority.

Where do I file an application to renew my DL?

Duly filled application form with the set of required documents to renew your DL needs to be submitted to Assistant R.T.O. at the Driving Licence Branch in your state. Your DL will be renewed for 5 years if it is for a Non-Transport Vehicle, and for 3 years if it being renewed for a transport vehicles. One can get the renewed driving licence on the same evening, that is if the licence is procured in the same office. It needs a period of 20 days after the application has been submitted, if the case is any different from the one mentioned above. The latter takes longer as it involves a process of verification and correspondence.

Driving Licence Renewal Form:

As the name implies, a Driving Licence Renewal Form is utilised as the KYC document when the concerned vehicle owner is looking to update/renew his/her licence, and the Road Transport Office (RTO) needs to understand the specifics of the current licence. This simple document can be easily downloaded from the concerned RTO’s website, or can be picked up as a physical copy from the local RTO office.

Form 9- Form of Application for the Renewal of the Driving Licence is a simple document involving a small number of informational queries. Of course, a large part of this communication concerns the applicant’s current DL with space for appropriate authenticators and signatures. The completion of this form must be followed up with the attachment of the requisite documents (see next section) before the procedures of the renewal of driving licence can be put into action.

Documentation Required to Renew Driving Licence:

A list of valid documents are required to renew your driving licence. They have been listed below :

Duly filled DL renewal application form. This can be downloaded you’re your state’s RTO/RTA portal.Applicant’s medical certificate is a must. The form for the same can be downloaded via your state’s RTO/RTA portal. Please note that this form has to be filled out by a licensed physicianValid permanent driving licenceProof of age. This can be substantiated by any of valid government issued document like PAN card, passport, voter ID card, etc.Address proof/proof of residence : passport, driving license, electricity bill, phone bill, lease agreement, etc.Passport size photographs of the applicant. Please note that the number of this differs from one state to another.If the permanent licence holder has changed his address from one place to another, the same must be registered within 1 month at the RTO/RTA at which the initial and original licence was issued, or at the nearest regional office.If the permanent DL holder has moved to another state, then the aforementioned rule applies here too. In addition to that, a licence holder from another state has to submit a NOC (no objection certificate) which needs to be issued by the RTO/RTA at which the original licence had been issued.

Fees

Please note, that as driving licence is a document which is issued by the RTO (regional transport office), the fees of it are likely to vary from state to state. Though the difference in the amount is not a lot, there is a difference on a smaller scale. Please refer to your respective state’s RTO office or portal to get a complete clarity on the fee charged in your state.

OLD Fee for DL Renewal – Rs. 50

Source by bankbazaar…

Tuesday, March 27, 2018

Negotiable Instruments Act: Cabinet approves amendment

The amendment seeks to provide for interim compensation to the payee of a cheque, both at the trial stage and at the appellate stage, and further allows a court to order interim compensation to the payee of a cheque, a part of the amount at the trial stage itself.

And furthermore, if the drawer is acquitted, the court may direct the payee to repay the amount paid as interim compensation with interest. Similarly, the appellate courts will be enabled to order the appellant to deposit a part of the compensation awarded by the trial court at the time of filing an appeal.

The move follows from the representations from the public and the trading community regarding the injustice caused to payees as a result of pendency of cheque dishonour cases.

[Source: The Hindu Business Line]

Thursday, March 15, 2018

Dishonour of Cheque – Section 138 of the Negotiable instruments Act

This article on “Dishonour of Cheque – Section 138 of the Negotiable instruments Act” gives a comprehensive overview about all aspects of cheque bouncing and Cheque Dishonour as per laws in India

Page Contents

WHAT IS A CHEQUE?E-CHEQUE SECTION 138 NEGOTIABLE INSTRUMENTS ACT 1881 INGREDIENTS OF OFFENCE UNDER SECTION 138 GROUNDS FOR DISHONOUR OF CHEQUE OTHER NOTABLE ASPECTS OF OFFENCE UNDER 138 N.I. Act COMPLAINTS AGAINST A COMPANY:COMPLAINT AGAINST PARTNERS DEBT OR LIABILITY COMPLAINT UNDER 138 CAN BE FILED BY PLEADER / POWER OF ATTORNEY HOLDER DEATH OF ORIGINAL COMPLAINANT DEATH OF ACCUSED SUCCESSIVE PRESENTATION OF CHEQUES SETTLEMENT DURING TRIAL EXAMINATION OF COMPLAINANT ON OATH POST DATED CHEQUE COMPLAINT AGAINST PARTNERS DEMAND NOTICE BLANK CHEQUE PRESUMPTION UNDER SECTION 139 NI ACT

WHAT IS A CHEQUE?

Section 6 of Negotiable Instruments Act defines cheque as :

‘6. “Cheque“.-A “cheque” is a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand and it includes the electronic image of a truncated cheque and a cheque in the electronic form. Explanation I.-For the purposes of this section, the expressions-

(a) “a cheque in the electronic form” means a cheque which contains the exact mirror image of a paper cheque, and is generated, written and signed in a secure system ensuring the minimum safety standards with the use of digital signature (with or without biometrics signature) and asymmetric crypto system;

(b) “a truncated cheque” means a cheque which is truncated during the course of a clearing cycle, either by the clearing house or by the bank whether paying or receiving payment, immediately on generation of an electronic image for transmission, substitu ing the further
physical movement of the cheque in writing.

Explanation II.-For the purposes of this section, the expression “clearing house” means the clearing house managed by the Reserve Bank of India or a clearing house recognised as such by the Reserve Bank of India.’.

E-CHEQUE

Electronic cheque (e-cheque) is the image of a normal paper cheque generated, written and signed in a secure system using digital signature and asymmetric crypto system. Simply said an electronic cheque is nothing more than an ordinary cheque produced on a computer system and instead of signing it in ink, it is signed using the digital equivalent of ink. After the coming into force of The Negotiable Instruments (Amendment And Miscellaneous Provisions) Act, 2002, legal recognition has been accorded to e-cheques and they have been brought at par with the normal cheques. Now, a ‘cheque’ includes an e-cheque.

SECTION 138 NEGOTIABLE INSTRUMENTS ACT 1881

Section 138 Negotiable Instruments Act as it is at present after coming into force of The Negotiable Instruments (Amendment And Miscellaneous Provisions) Act, 2002:

138. Dishonour of cheque for insufficiency, etc., of funds in the account:

Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice. to any other provision of this Act, be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twice the amount of the cheque, or with both:

Provided that nothing contained in this section shall apply unless-

(a) the cheque has been, presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(b) the payee or the holder in due course. of the cheque as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to
the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteendays of the receipt of the said notice.

Explanation.-For the purposes of this section, “debt or other liability” means a legally enforceable debt or other liability.

INGREDIENTS OF OFFENCE UNDER SECTION 138

The cheque should have been issued for the discharge , in whole or part, of any debt or other liabilityThe cheque should have been presented within a period of six months or within its validity period whichever is earlier.The payee or holder in due course should have issued a notice in writing to the drawer within 30 days of the receipt of information by him from the Bank regarding the return of the cheque as unpaid.After receipt of the said notice from the holder in due course, the drawer should have failed to pay the cheque within 15 days of receipt of the said notice.

GROUNDS FOR DISHONOUR OF CHEQUE

“Funds Insufficient” :

Section 138 describes the above ground of insufficient funds in the account of the drawer of the cheque in the following words:

The amount of money standing to the credit of the account of the drawer on which the cheque is drawn is insufficient to honour the cheque, or

The cheque amount exceeds the amount that can be paid by the bank under an arrangement entered into between the bank and the drawer of the cheque.

However, besides the above, the Courts have also accepted some other heads which though expressly do not say ‘insufficient funds’ but are implied to mean the same and a cheque dishonoured on any of these grounds can be used for the purpose of prosecution under section 138 Negotiable Instruments Act. Some of theses grounds are:

1. Account Closed: “ It is an offence under section 138 of the Act – Closure of account would be an eventuality after the entire amount in the account is withdrawn – It means that there was no amount in the credit of ‘that account’ on the relevant date when the cheque was presented for honouring the same”

This has been held by the Hon’ble Supreme Court of India in-

NEPS MICON LTD. AND OTHERS VS. MAGMA LEASING LTD.

1999 ISJ (BANKING) 0433; 1999 (1) APEX C.J. 0624; 1999 AIR (SCW) 1637

2. ‘Stop Payment’ instructions:

“Once the cheque has been drawn and issued to the payee and the payee has presented the cheque, ‘stop payment’ instructions will amount to dishonour of cheque.”

MAHENDR S. DADIA VS. STATE OF MAHARASHTRA

I (1999) BANKING CASES (BC) 133 (17/03/1998)

3. ‘Refer to drawer’:

“ …….. makes out a case under section 138 of the Negotiable Instruments Act, 1881 which expression means that there were not sufficient funds with the bank in the account of the respondent”

LILY HIRE PURCHASE LTD. VS. DARSHAN LAL,

(1997) 89 COMPANY CASES 663 (10/01/1997)

4. ‘Not a clearing member”:

“Cheque returned with endorsement ‘not a clearing member’. To attract the provisions of section 138 NI Act, the cheque should be presented with the bank on which it I drawn- If the cheque is not presented to the bank on which it is drawn, then provisions of sec 138 would not be attracted. If bank on which the cheque is drawn is not a clearing member of the Reserve Bank of India – unpaid return of the cheque would not attract section 138.”

CHAIRMAN, JAWAHAR COOPERATIVE URBAN BANK LTD. AND OTHERS VS. RAMANJANEYA ENTERPRISES, HYD. AND ANOTHER

2005 (5) CRIMINAL REPORTED JUDGEMENTS (CRJ) 0591;

2005 (2) DISHONOUR OF CHEQUE REPORTER (DCR) 0169

5. Effect of other endorsements:

It has been repeatedly held by courts that manifest dishonest intention of the drawer resulting in dishonour of the cheque would lead to prosecution under section 138 Negotiable Instruments Act regardless of the actual ground of dishonour.

OTHER NOTABLE ASPECTS OF OFFENCE UNDER 138 N.I. Act

COMPLAINTS AGAINST A COMPANY:

Section 141 of Negotiable Instruments Act says:

141. Offences by companies:

(1) If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

– Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence.

– Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the state Government, as the case may be, he shall not be liable for prosecution under this Chapter.

(2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly,

Explanation-For the purposes of this section,-

(a)”company” means any body corporate and includes a firm or other association of individuals; and
(b) “director”, in relation to a firm, means a partner in the firm.

The Hon’ble Supreme Court has held that merely being a director of a company is not sufficient to make a person liable under section 141 of the Act. A director in a company cannot be deemed to be in charge of and responsible to the company for the conduct of its business. The requirement of section 141 is that the person sought to be made liable should be in charge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as a fact and there is no deemed liability of a director in such cases. AIR 2005 (SCW) 4740; AIR 2005 SC 3512, AIR 2007 SC 1682

Supreme Court has also held that for the directors of the company to be made liable for an offence under sec 138, the complaint must contain specific allegations against directors as to how directors are in charge and responsible for conduct of business of company. Mere allegation in complaint that accused persons are directors and responsible officers of the company is not sufficient. AIR 2007 SC 1454

COMPLAINT AGAINST PARTNERS

Averment in a complaint that accused (partners) at relevant time were in charge of and responsible to the partnership firm for conduct of its business are necessary to initiate process against them for an offence under sec 138 NI Act. In absence of requisite averments in complaint, the offence against accused / partners could not be made out.
AIR 2004 SUPREME COURT 4274.

DEBT OR LIABILITY

Explanation to section 138 makes it clear that ‘debt or other liability’ as mentioned in sec 138 mean a legally enforceable debt or other liability.
Various High courts and the Supreme Court have explained this many a time.

“Unless issuance of cheque is pleaded and proved to discharge a legally enforceable liability, dishonour is no default entailing criminal proceedings. Complaint in respect of such a cheque issued as a gift, is not maintainable.” 1995 Andh LT 468, 1997 Cr LJ 4237 AP; 1998 (3) Bank LJ 279;

“It is only debts alive at the time when the cheque dishonoured are issued. Any subsequent claims in favour of the complainant cannot be made the subject of dispute under section 138 NI Act” 1997 VI AD DELHI 585

Supreme Court has held:
“When it is a legally enforceable debt or a liability only then section 138 applies and relationship of the parties is not at all a factor germane to the proceedings”
2004 (1) APEX C.J. 0273; 2004 (1) CR.C.C. 0693

COMPLAINT UNDER 138 CAN BE FILED BY PLEADER / POWER OF ATTORNEY HOLDER

Cognizance of offence of cheque dishonour – No condition precedent that complaint should have been signed by the payee as holder of cheque – A complaint need not be presented by complainant himself – Pleader or counsel in whose favour vakalatnama has been executed by complainant is competent to file complaint.
AIR 2007 (DOC) 286 (RAJ.); 2 (2007) BC 206 (RAJ.)

“Section 142 of Negotiable Instruments Act does not specifically state that the payee or holder in due course of the cheque shall lodge the complaint himself; the power of attorney holder who has every authority to sign and act on behalf of the principal can lodge a complaint under sec 138 NI Act.”
AIR 2007 (DOC) 51 KER.; 2006 (3) BANK J 425 (KER)

DEATH OF ORIGINAL COMPLAINANT

Death of original complainant after filing of complaint – Son of the deceased came to be added as complainant subsequent to taking cognizance of offences – Proceedings do not abate and son of deceased complainant can come on record and continue prosecution.
AIR 2007 (DOC) 271 (A.P.) ; 2006 (3) CIVIL COURT CASES 294

Offence of dishonour of cheque – Death of complainant at stage of evidence of defence – His legal heirs entitled to continue prosecution.
AIR 2007 (DOC) 222 (RAJ.) ; 2007 (1) RAJ L W 4

DEATH OF ACCUSED

Dishonour of cheque – Proceedings in the complaint alleging offence under section 138 cannot be initiated against legal heirs of the person who had issued the cheque.
AIR 2007 (DOC) 58 (P&H) ; 2006 (3) BANK J 327 (P&H)

SUCCESSIVE PRESENTATION OF CHEQUES

“ A cheque can be presented any number of times during the period of its validity by payee. On each presentation of the cheque and its dishonour a fresh right – and not cause of action – accrues in his favour. He may, therefore, without taking pre-emptory action in exercise of his such right under Cl (b) of sec. 138, go on presenting the cheque so as to enable him to exercise such right at any point of time during the validity of the cheque.”
AIR 1998 SUPREME COURT 3043

SETTLEMENT DURING TRIAL

The payment by the accused of the full cheque amount during the pendency of trial under sec 138 does not absolve the accused of his liability for the offence of dishonour of cheque. However, the courts take a lenient view in such cases and the accused is set free or punished lightly.
AIR 2007 (DOC) 264 DELHI is an illustration of such cases.

The Delhi High Court has also held that if during the pendency of a dispute under sec 138 NI Act the parties enter into a settlement, it should be respected by the courts as proceedings under sec 138 are quasi criminal in nature.
AIR 2007 (DOC) 264 (DEL.)

EXAMINATION OF COMPLAINANT ON OATH

“The non-obstante clause in sec. 142 or 145 of the NI Act does not override the provisions of sec. 200 CrPC and it is mandatory for the magistrate to examine the complainant who has filed the same under sec 138 of the NI Act though with an affirmation as regards truthfulness of the contents of the complaint. It, therefore, follows that the magistrate is obliged and duty bound to examine upon oath the complainant and his witnesses before issuance of process under section 204 of CrPC though there is a solemn affirmation at the foot of the complainant by the complainant.”
AIR 2007 (NOC) 1372 (BOM) ; 2007 (3) AIR BOM R 181 (DB)

POST DATED CHEQUE

Post dated cheque – Is not a “cheque” on the date it is drawn – It becomes a “cheque” only on the date written on it – Till that date post-dated cheque remains a bill of exchange.
The post-dated cheque becomes a cheque within the meaning of section 139 on the date which is written thereon and not the 6 months period is to b reckoned for the purposes of proviso (a) to sec 138 from the date. Thus in case of a pot-dated cheque, six months period is to be reckoned from the date mentioned on the face of the cheque and not any earlier date on which the cheque was made over by the drawer to the drawee.
AIR 2001 SUPREME COURT 1315

COMPLAINT AGAINST PARTNERS

MATERIAL ALTERATION:
Section 87 of Negotiable Instruments Act provides as under:

87.Effect of material alteration:

Any material alteration of a negotiable instrument renders the same void as against any one who is a party thereto at the time of making such alteration and does not consent thereto, unless it was made in order to carry out the common intention of the original parties:

Alteration by indorsee _ And any such alteration, if made by an indorsee, discharges his indorser from all liability to him in respect
of the consideration thereof.

The provisions of this section are subject to those of sections 20, 49, 86 and 125.

Respondent issued a blank cheque without mentioning the date and amount and sent it with a letter requesting complainant to present it after a month – Act of complainant in filling up amount portion and date was a material change and it could not be enforced even though it was issued for a legal liability – Alteration without the consent of the party who issued the cheque rendered cheque invalid.
2004 (1) CRIMES 567 (AP)

Every alteration is not material alteration – Only such alteration which would adversely affect interest of the other side could be called material alteration.
AIR 2007 (NOC) 1082 BOM. ; 2007 (2) AIR BOM R 442

Date altered by adding 1 before ‘2’ in the month to make it appear that cheque was issued on 25.12.1993 so as to bring the cheque within validity period. These are material alterations. Accused liable to be acquitted in such cases.
2005 (2) ISJ (BANKING) 115; 2005 (2) DCR 37

DEMAND NOTICE

Proviso to Section 138 NI Act provides as follows:

Provided that nothing contained in this section shall apply unless-

(a) the cheque has been, presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(b) the payee or the holder in due course. of the cheque as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the
drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

Explanation.-For the purposes of this section, “debt or other liability” means a legally enforceable debt or other liability.

Supreme Court has held time and again that a cause of action for filing a complaint under section 138 accrues to the drawee of a cheque only after a notice is issued to the drawer within the prescribed period after receipt of information by him regarding the dishonour of cheque and the subsequent failure of the drawer to make the cheque payment within the prescribed time, i.e. 15 days from the receipt of notice by him.
AIR 1998 SUPREME COURT 3043

Demand notice – Sent under certificate of posting returned with endorsement ‘not claimed’ – Is deemed to be served
AIR 2007 (NOC) 942 (KAR); 2007 (2) AIR KAR R 199

Demand notice – Giving of notice in some address is not enough for complying with statutory requirement of notice – Notice should be given in the correct address – Further, mere giving of notice will not be sufficient when notice is returned stating that it was reserved because it is not the correct address or door is locked in redirected address – Return of acknowledgement card with such endorsement – Notice is not served.
AIR 2007 (DOC) 131 (KER) ; 2007 (1) KLJ 10

Demand notice – Service of – Can be proved only by submitting postal receipt or by calling record of post office – In absence of postal receipt no presumption can be drawn in favour of applicant for sending said notice through registered post – Acknowledgement due receipt without any letter number or postal receipt number mentioned in it – Not having any seal of post office either at the time of sending to addressee or at the time of returning to the sender, cannot be accepted as compliance with provisions of sec 138 (b) of the Act.
AIR 2007 (DOC) 253 (M.P.); 2007 (51) AIC 239

BLANK CHEQUE

Respondent issued a blank cheque without mentioning the date and amount and sent it with a letter requesting complainant to present it after a month – Question whether blank cheque will come within the definition of cheque? – If the cheque is not drawn for a specified amount it would not fall within a definition of bill of exchange – Act of complainant in filling up amount portion and date was a material change and it could not be enforced even though it was issued for a legal liability – Alteration without the consent of the party who issued the cheque rendered cheque invalid.
2004 (1) CRIMES 567 (AP)

Admission of signature on the cheque is not equivalent with admission of execution – Right of the accused to contend that a blank signed cheque was mis-utilised by the payee cannot be taken away by such mere admission of signature.
AIR 2007 (DOC) 195 (KER.); 2007 (1) KLT 525 (KER)

Accused entered into security arrangement with complainant for sale of its product – Accused issued blank cheques as security to security agency agreement – No debt or liability existed when cheques were handed over to drawee complainant – Complaint based on blank cheque issued towards security is not maintainable.
AIR 2007 (DOC) 269 (DEL); 2 (2007) B C 69

PRESUMPTION UNDER SECTION 139 NI ACT

Section 139 Negotiable Instruments Act provides:

139. Presumption in favour of holder:

It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.

“The effect of these presumptions is to place the evidential burden on the accused of proving that the cheque was not received by the complainant towards the discharge of any liability. Because both sections 138 and 139 require that the court shall presume the liability of the drawer of the cheques for the amounts for which the cheques are drawn…it is obligatory on the courts to raise this presumption in every case where the factual basis for the raising of this presumption had been established. It introduced an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused.”
AIR 2001 SUPREME COURT 3897

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Sunday, March 11, 2018

All you need to know about Road Accidents

All you need to know about Road Accidents

PART I

There has been a steep escalation of road accidents in the past few years with the expansion of more motor vehicles in India. Road injuries and fatalities have come up as a major public concern as it is one of the leading causes of death and permanent disability in this country. According to a study conducted by National Transportation Planning and Research Center [1], one road accident takes place in every four minutes in India. Almost 97% of the road accidents are caused by rash or negligent driving[2].

When a road accident takes place, it gives rise to both civil and criminal liabilities on the part of the driver depending upon the nature and cause of the accident. Motor Vehicles Act, 1988 majorly deal with issues related to road accidents. Indian Penal Code also covers certain areas when it comes to criminal liability.

Things to do in case of a road accident (Section 132 of Motor Vehicles Act, 1988)

It is the driver’s duty to stop his vehicle and wait for a police officer for some reasonable time[3] when he is involved in a road accident and injures any person, animal or causes damage to any other car or property.

The driver of the vehicle should not panic and he should give his name and address to the person affected by the accident and also ask for the affected person’s details.

Generally people run away from such situations mainly due to fear of public harassment, violence and criminal record. There is a possibility that people may own up to their fault but because of rampant bribery culture they think that it is safer to run away than fact potential harassment and loot by the police.

There have been many accidents in which because of celebrity limelight and monetary stronghold the matter has been suppressed and not faced any serious implications in the eyes of law. The Aaston Martin hit and run case is one of those cases where the eye witness gave the statement that a young man (Mukesh Ambani’s son Akash Ambani) came out of the Aaston Martin Rapid and hopped into security vehicle after hitting a Hundai car and then ramming into an Audi showroom but the next day an old employee of Reliance Industries, Mr. Bansilal Joshi said he was responsible for the accident which occurred during a routine maintenance ride of the said car. He said that he panicked so he ran away. The police recorded his report but did not arrest him as they were not sure about who was the actual culprit.[4]

The recent Hema Malini car accident also is one of the incidents where priority of fetching first aid was given to the celebrity and member of parliament over the common Indian family. All of the family members had suffered graver injuries than what Hema Malini did; and in addition to that, they lost their 2 year old daughter too. But medical help reached them long after Hema Malini was driven off around 60 km away by a Samaritan passer-by in his car.[5]

Things to do in case of injury to a person in a road accident (Section 134 of Motor Vehicles Act, 1988)

It is the duty of the driver or the person in charge of the vehicle to take the injured person to the nearest hospital unless he is unable to do so due to circumstances out of his control. Such a driver should provide any kind of information to the police as and when demanded.

In case there was no police near the area of accident, such incident should be reported to the nearest police station within 24 hours of the said accident.

Information about the accident should be given to the insurer of the policy holder (driver or owner). Policy holder is the person who holds the Certificate of Insurance issued by the insurer. Information such as date, time and place of the accident, details of the person dead or injured, details of the driver of the car are important in such cases.

Things to do after a road accident

An application for compensation should be filed under the Claims Tribunal[6] when death, injury or damage has been caused by a motor vehicle.

Such application can be filed by[7]:-

the person who has sustained such injury;

the person whose property is damaged;

legal representatives of the person deceased or;

an agent duty authorized by the injured person or the legal representatives.

There are three modes by which aggrieved can ask for compensation:-

Principle of no fault liability (Section 140),

Structured formula basis (Section 163A),

Compensation in hit and run cases (Section161)

In the case of no fault liability principle, the claimant does not need to prove any fault or neglect on the part of the driver for receiving compensation. There is a fixed amount of compensation payable to the victim which is 50,000/- in case of death and 25,000/- in case of permanent disablement.

In case of compensation bystructured formula basis, the owner of the vehicle or the authorized insurer shall be liable to pay as per the Second Schedule of the said Act to the victim or his legal representatives when such vehicle is involved in causing death or permanent disablement to any person.

The above two modes of compensation can be availed only if the identity of the car is known. Also, a claimant cannot use both methods of compensation together.

The third mode of compensation is in Hit and Run cases. Hit and run can be explained as the liability of a driver of any vehicle who is involved in a collision which damages vehicle or property of any other person or injures any other person(s) or both and who runs away without giving his name and license number as prescribed by statute to the injured party, witness or any law enforcement officer. It is a situation where the identity of the vehicle responsible for the accident is not traceable. As the identity of the driver or the owner is not traceable, a fixed amount of compensation is given to the victim or the legal representatives of the victim from funds created by the government. The claimant receives 25,000/- and 12,500/- in situation of death and grievous injury respectively.

So evidently, the compensation amount reduces by half if the driver or the car cannot be located. Therefore it is imperative to attempt to locate the wrong doer.

No time limit has been prescribed for filing claim application. Initially when the law came into force application had be filed within 6 months from the date of accident which was later increased to one year but for the welfare of the people such limitation has been deleted from the legislation^[8].

Any person who feels aggrieved by the decision of the Claims tribunal can appeal in the High Court. There are exceptions to such appeal. Firstly, no appeal by the person who is supposed to pay any amount in terms of award given by the Claims Tribunal shall be entertained by the High Court, unless he has deposited with it rupees 25,000/- or 50% of the amount so awarded, whichever is less in the manner directed by the High Court. Secondly, no appeal shall lie against any award if the amount in the dispute is less than rupees 10,000/-^[9].

Motor Vehicles Act, 1988 also covers the offences like over speeding, dangerous driving and drunk driving. A person should have had 30mg of alcohol per 100ml of blood in his/her body to be called drunk under the Act. A first time offender in the case ofdrunk driving could be sentenced up to 6 months imprisonment or fined up to two thousand rupees or both. A second time offender within the time gap of 3 years could be sentenced up to 2 years of imprisonment or fined up to three thousand rupees or both^[10].

What gives rise to criminal liability in a road accident?

Accidents which are caused by the rashness or negligence of the driver give rise to criminal liability. Section 304A of the IPC covers such liability which is punishable for 2 years or fine or both. It is absolutely necessary that death or injury should be a direct result of the negligent actof the accused. If there is a third party intervention then the prosecution case would weaken. Remote or indirect connection will not give rise to any criminal liability. For example, if a driver while talking on the cell phone hits a pedestrian, he is directly responsible for such an accident. On the other hand, when a driver collides with a building and the window sill falls on a pedestrian walking by, then such driver will not be liable under this section.

A person who is driving or riding holds the ultimate duty to control his vehicle. Such a person is prima facie guilty of negligence if his vehicle dashes into something or someone unless he has reason to explain that he did everything in his power to keep the vehicle under control but the accident was inevitable. This principle was established in the landmark case of Ratlam v.s Emperor^{^[11]}. In the case of K. Perumal v.s State^{^[12]} it was held that the driver was liable to be punished under section 304A of the IPC as he ran over his vehicle on the victim, without attempting to save him even though there was sufficient space on the other side.

Carelessness does not give rise to criminal liability (but it does result in civil liability under the Motor Vehicles Act as previously explained). Recklessness of the accused should reflect disregard for other person’s life and property which means there has to be intention or what we call in law Mens Rea. In the case of Chintaram v.s State of Madhya Pradesh^{^[13]} , the deceased was walking on the middle of the road so the accused was driving by the left of the road trying to keep a distance from her. When the accused reached close to the deceased she abruptly took a left turn and got struck by the motorcycle. In this case, the accused was not negligent. The erratic decision of the victim did not give any reasonable time to the motorcyclist to avoid her so he was acquitted.

There are various other offences involving motor vehicle accidents which are punishable under the Indian Penal Code.

Section 279 covers rash driving or riding on public way which is punishable by the way of imprisonment up to 6 months or fine of one thousand rupees or both. Rash driving is independent of other offences irrespective of its consequences, which means if the consequence of such rash driving is death or injury then the accused will be tried for those offences in addition to the charge under this section.

Section 336 provides that anyone who acts rashly or negligently which endangers human life or safety can be punished with imprisonment for a term up to three months or a fine of rupees 250/- or both.

Section 337 and section 338cover causing hurt and causing grievous hurt which threatens life and safety of people. A person is liable to pay up to rupees 500/- as fine and can be sentenced imprisonment for a term of six months or both in case of causing hurt under section 337. In case of grievous hurt, the driver can be punished with imprisonment extending up to two years or fine of rupees 1000/- or both.

All seven charges were proved in the Sessions Court against the accused in the Salman Khan’s 2002 hit and run case which were covered sections 279, 304(iii), 336,337,338,427 of the IPC and sections 181 and 183 of the Motor Vehicles Act.

Recently, Vice President (Legal) of Reliance Industries, Jahnvi Gadkar has been charged with culpable homicide not amounting to murder along with provisions of drunk driving from the Motor Vehicles Act because Gadkar had in an inebriated state rammed her car (Audi) - into a taxi and killed two persons.

PART-II

Position of road accident legislations in UK and USA

India and UK have very similar legal position with regard to road accidents. Road Traffic Act, 1988 is the main legislation which covers issues related to road safety and accidents. Provisions of Motor Vehicles Act 1988 (India) and Road Traffic Act, 1988 (UK) are quite identical. UK Highway Code Penalty Table^{^[14]} gives a complete list of offences and their corresponding punishments.

There is a Drink Drive Rehabilitation Scheme in UK which has been active since January 2000. This is generally offered at the discretion of Court to the offender and under this scheme, any offender can reduce his ban on driving which should be more than 12 months. There is also provision of community service for repeated offenders.

In USA, car accident issues are entirely covered under respective state legislations but all the states have three basic elements which need to be proved satisfactorily by the victim to claim compensation. Firstly, plaintiff should prove that there had been a breach of duty from the part of the defendant. A mere utterance of sorry at the time of the accident by the defendant can be used as evidence against him. Secondly, the victim must prove harm is caused to him. Damage to vehicle and injury to the victim must be proved to the court so that the victim can rightfully claim compensation, medical expenses, loss of wages etc. Finally, the plaintiff must prove element of causation. Causation means consistency of medical testimony of the victim with the nature of the collision. It is possible that certain injuries of the victim occurred before the accident so injuries of the victim should be compared with a proper evaluation of the crash scene which is generally captured in pictures and CCTV footage at the traffic poles.

Conclusion

The Motor Vehicles Act had been recently amended in March 2015 and a new Motor vehicle Bill is set to be introduced in the monsoon session of the Parliament this year. The bill is going to introduce strict measures against traffic offenders. It suggests heavy fines up to 3 lakh rupees and imprisonment up to 7 years for death of a child.^[15] The increase in both pecuniary and imprisonment penalty may create a deterrent effect in the minds of general public as well as regular offenders. There are CCTV cameras at the traffic signals and the highway speed check posts but most of them are non functional. This loose functioning of the traffic authorities also needs to change. India may have an ideal legislation for dealing with traffic regulations and accidents but in the end it is the duty of the citizens and traffic authority to keep the roads & highways a safe place.

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[1]http://www.helplinelaw.com/govt-agencies-and-taxation/ACMV/accidents-claims-under-the-motor-vehcles-act-1939.html

http://sites.ndtv.com/roadsafety/important-feature-to-you-in-your-car/

[2]http://www.newindianexpress.com/states/kerala/97-Percent-of-Accidents-in-2013-Due-to-Rash-Driving/2014/02/24/article2074546.ece

[3] Reasonable time has not been defined under the Act. It varies from case to case and also depends to some extent on the judges who comprise the bench.

[4]http://www.forbes.com/sites/naazneenkarmali/2014/01/02/the-curious-incident-of-mukesh-ambanis-aston-martin-in-the-night-time/

[5] http://www.ndtv.com/india-news/brutal-error-by-hema-malini-says-union-minister-babul-supriyo-779629

[6] Section 166 of The Motor Vehicles Act, 1988

[7] Section 166 of The Motor Vehicles Act, 1988

[8] 1994 Amendment of the Motor Vehicles Act, 1988

[9] Section 173 of the Motor Vehicles Act, 1988

[10] Section 185 of the Motor Vehicles Act, 1988

^{^[11]} AIR 1935 Mad 209

^{^[12]} 1998 4 Crimes 382

^{^[13]} 1986, ACJ 1043 MP

^{^[14]} https://www.gov.uk/highway-code-penalties/penalty-table

[15]http://auto.ndtv.com/news/new-motor-vehicles-bill-to-be-introduced-in-monsoon-session-of-parliament-778968

Picture Credits:

http://youfacebookclip.com/search.php?q=car+wreckshttps://www.educaloi.qc.ca/en/capsules/car-accidents-what-dohttps://flvtop.com/search.php?q=road+car+accidents

TAGS: road accident , hit and run , no fault liability , hema malini case , aaston martin case ,salman khan case , motor vehicles act , S. 134 MV Act ,claims tribunal , drunk driving ,rash driving , Jahnvi Gadkar ,Road Traffic Act , 1988 , UK Highway Code Penalty Table ,Drink Drive Rehabilitation Scheme in UK , motor vehicle bill

By Srija Choudhury

Licensed for years

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It is one of the most updated online legal website. thanks for providing this type of news.

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