The Fender Bender

I had the quintessential Delhi crash experience the other day when a lady, driving her car with an infant on the front passenger seat, rear-ended our four-wheeler. She emerged dazed from her sub compact while her child wailed. My car was pretty undamaged: as for her car, I couldn’t say which dent was ‘mine’ because it had a dozen dents and the paint had peeled off many of them.

Rather than coming out screaming, I enquired if she was well. Her mood instantly changed from fear to opportunistic aggression. “You must compensate me for what your driver has done,” she demanded. I could see the beginning of a pointless street brawl, so I told her to note down my insurance details and let them take care of whatever liability she believed I had. That spurred her aggression. In time, the cops showed up and, when they learnt I was a lawyer, did their best to encourage me to join them in shaking her down.

Thanks to a screaming baby and a foolish woman for an adversary, my combative spirit was not provoked. We spend three ludicrous hours on the road and no one came out ahead, not even the cops who didn’t get their pay off. However, I did decide right there that I would write the manual for the fender benders and here it is.

In a car crash situation in India, much depends on whether anyone is hurt in an accident or not. If someone is hurt, Section 134 of the Motor Vehicles Act 1988 requires the driver to secure medical attention for the injured person and report the matter to the police immediately. That apart, such an accident inevitably attracts Sec 304A of the Penal Code, which prescribes a two-year imprisonment term with a fine for rash and negligent driving. In the immediate here and now, this means that the offence is “cognisable” and the cops have the power to arrest you. It’s a solace to know that the offence is “bailable”, which means the police must give you bail, but you can be sure you will spend a lot of time hanging about the police station.

Torturous Trial
In practice, unless someone dies, the driver is highly unlikely to go to jail but the torturous criminal trial may well make him wish that he were the victim rather than the perpetrator! In addition, Section 140 of the Motor Vehicles Act 1988 also requires the owner to compensate the victim. In Indian law, the measure of compensation is computed on the basis of the victim’s income stream in its relationship with how the accident impacted this income. The computation changes if the driver is to be blamed for the accident (with some supplementary calculations for pain and inconvenience caused to the victim). Permanent disabilities have their calculations too.

The process of converting human misery to cash is a complex one and I am not going to inflict it on you. What we must understand here is that we are talking about two liabilities rather than one. Anyone who crashes his vehicle in India and hurts someone ends up with (a) a criminal case where he stands accused of rash and negligent driving and can be jailed, and (b) a separate case before the Claims Tribunal constituted under the Motor Vehicles Act which awards compensation to the victim. The criminal case is of course a terrible bother because the ‘accused’ must appear in court at every hearing and exemptions from personal appearance are hard to get. The Claims Tribunal case is not by comparison such a big deal, not merely because personal presence is not necessary but also because in the majority of cases, the insurance cover can settle the likely claim and the insurance company does much of the fighting.

What if you get hit, no one is hurt but the car still takes a beating? Collecting car repair costs from the culprit seems like a very good idea but how? You could of course yell and scream and try to shake down the driver through sheer intimidation but if that does not work, you would have to look at making a claim on the perpetrator’s insurance company. This is where your problems begin. An insurance claim will not be paid unless you produce a First Information Report (FIR) and to get an FIR, you need the police.

Police Powers
Would I be axiomatic in stating that not every policeman has a huge interest in seeing your problem solved? There are policemen who have had to purchase their jobs and now want a return on their investment. More significantly, the police are measured by crime figures in their jurisdiction and have no interest in recording FIRs and pushing up these figures. But an even bigger reality stares you in the face. On the principle of it, when you deal with a man who has the power to contain your liberty, it helps to understand just what he is empowered to do.

First, since no one is hurt, there is no crime to stand trial for but Section 132 of the Motor Vehicles Act, 1988 requires the driver to “cause the vehicle to stop and remain stationary so long as may be necessary, but not exceeding twenty-four hours when required to do so by any police officer”. In short, if the cop so requires, you can kiss your car good bye for 24 hours! T he car you are driving carries evidence of a crime so every policeman is well within his right to impound it! He can also transport both parties to the police station and then hang them both out to dry while he intermittently records their statements and conducts his inquiries. These powers give him tremendous power over both victim and perpetrator; powers that many accident victims will attest are capable of much abuse. It is not uncommon experience that the police will pitch up a crash, have both parties in a verbal slugfest at the police station and then finally end the matter in a compromise where both agree to make no claims on each other while both pay off the police! If you can pay court fees to settle disputes, why not cop fees?

The Crash Policy
If you follow the diktat set out in a standard insurance company hand-out, you note the car number of the loony who hit you if he stops, note the names and contact details of witnesses if any agree to stand witness, file an FIR with the nearest police station if they will allow you to, ask the insurance company for the name of their preferred garage if you can reach them, ask the garage to estimate the repair, send this estimate to the insurance company and have their surveyor collaborate it, get the repair authority from the insurance company and instruct the garage to carry out the repair, fill a claim form enclosing with it your car’s registration certificate, your driving licence, a copy of the insurance policy, a copy of the FIR, a copy of the estimate of repair and a copy of the repair invoice. Simple enough!

What you will get for your exertions is your insurance claim based on the damage the insurance company will accept was part of the damage caused by the same crash (as opposed to damage they believe may have occurred earlier) less a percentage for depreciation and a further percentage for plastic parts. To add insult to injury, they not only give you less than what the repair costs you but they will also load your insurance premium by some 15 per cent for the following year because you have made a claim in the previous one.

If you choose to follow my advice instead, do not buy a car unless you can afford to repair it and if you have the misfortune to be kissed by a fender bender, forget about it, go home, find the local dent beater, grin and pay the bill. At any event, do not seek police intervention because the pleasant police experience has not yet been invented. By that same token, do not pursue any remedy against the perpetrator of the crime because retribution is a luxury that few of us have the time, money or energy to support!

Originally Published in Businessworld on June 5, 2006


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