Motor vehicle accidet by flood.
J K Agrawal
(Querist) 12 December 2014
This query is : Resolved
In a case which i represent, a car was flushed away in nala due to heavy rains and the husband (driver) and wife drowned and died.
The insurance company taking plea of "Act of God" in defense.
Please help me to give some citations where in this type of cases, the Court awarded claim taking it as an accident.
I tried to search it but failed.
Thanks
ajay sethi
(Expert) 12 December 2014
am unable to find citations on said issue
Devajyoti Barman
(Expert) 13 December 2014
This incident in any case is not ' Force Majeure'.
Anirudh
(Expert) 13 December 2014
Dear Mr. Agrawal,
I think the Insurance Company has a good defence, especially when you say that there was flash floods. Certainly, in my view, the same cannot be called an "accident".
Guest
(Expert) 13 December 2014
Dear Mr.J.K.Agarwal Just Type"Bombay Flood and Insurance Claims 2005" and Search you will get all the answers for your query and when you type "Bombay Flood and Insurance Claims" alone you would get detailed report of royal sundarams as well.
P. Venu
(Expert) 13 December 2014
Perhaps, the more relevant question would be whether the incident occurred had taken place when the vehicle was being driven, that too in a public road i.e. whether the incident could be taken as Motor Vehicle Accident. If so, it makes no difference whether injury was sustained due to an Act of the God or due to human or mechanical fault.
J K Agrawal
(Querist) 13 December 2014
Thanks to all for taking pain for me.
As suggested by mr Rajkumar, it surf net and found a very good article by Royal Sundaram. This article guides about Own Damage Claims but my case is some what different.
In my case the driver estimated wrong and drove vehicle in flowing water around 6 to 9 inch. It was steep there and they flushed away.
Kindly suggest whenever you encounter such a case.
Thanks
Guest
(Expert) 13 December 2014
Dear Sir,Instead of Stating it as "Driver Estimated Wrong" Present suitable wordings which could strengthen your case.
prabhakar singh
(Expert) 13 December 2014
Sometimes motor accidents are caused by acts of god. For example, heavy winds, rain, thundershowers and heavy snowfall may result in automobile accidents.
So unless policy taken is comprehensive enlisting all acts of God it would cover, defence would stand.
prabhakar singh
(Expert) 13 December 2014
However the key issue in determining fault or liability for a vehcile accident is negligence, regardless of weather. No matter what the weather conditions, a key factor when determining liability is the answer to the question, ‘were each of the drivers involved in the accident acting in accordance with the standards of care that a reasonable person would follow in similar circumstances?’
Bad weather like fog, rain, ice, wind or snow are often an important circumstance that help determine whether the person was acting reasonably or was driving negligently or recklessly.
prabhakar singh
(Expert) 13 December 2014
I would like to add one thing more that in motor accident cases, the law requires drivers to be careful when encountering anyone they meet on the road , passengers, persons in other vehicles, and pedestrians so this one is a given. This is called the "duty of reasonable care."
The question of fact that he 'he estimated wrong 'is qualified one in the sense that his estimate of assessment was due to his own negligence and recklessness or it happened despite his every possible care in those circumstances that were present at the time of accident.
So it's a classic case before you where you need to develop things so in evidence
that it was NOT an Act of God as it was possible to drive in those conditions of weather and road , and that accident occurred despite every reasonable care taken by driver required in those circumstances. To illustrate ,he was driving slowly, carefully yet accidently the wheels slipped into and not that he estimated wrongly. For you it was not God who drove car to let it go in the water nor driver so desired negligently yet it happened ACCIDENTLY.
Dr J C Vashista
(Expert) 14 December 2014
Very well analysed by Mr. Parbhakar Singh, I agree.
You may manipulate the circumstances which favour to prove your claim, as illustrated by the expert Mr. Singh, although it is a classic case, wherein, prima facie, the insurer is perfect in passing on the buck on the act of God.
Whether the vehicle is comprehensivly insured, please re-check the policy and its terms.
Rightly observed by Mr Singh, the nalah or cho where rain water flushed away the car did not have proper road condition and the driver had been driving with due deligence.
P. Venu
(Expert) 14 December 2014
Th provisions of MV Act ensures compensation for injuries sustained in all and every contingencies while the vehicle is in motion; it is not necessary that compensation be confined to cases of failure or fault on the part of the driver.
J K Agrawal
(Querist) 14 December 2014
Respected Sir
Thanks again to all of you. Mr Singh well guided me. (in petition i did not mention that 'the driver estimated wrong'. it is our personal talk as you should be aware of true facts.') I drafted petition carefully and mentioned that the driver was utmost careful.
The policy is comprehensive one and covers flood specifically. but it regards to own damage. I am taking it that it covers even accident and damage to occupants and third party.
It is also a point with me, as suggested by Mr Venu, that before 1987 the compensation coverage was for 'accident caused by motor vehicle' whereas after 1987 the wordings are "accident arising out of use of motor vehicle'. The new wordings in present law eliminate the issue of negligence.
Thanks a lot. I argued the case at length when it was fixed for award on 140 MV Act. The Presiding Officer after hearing 2 hours arguments, just suggested me that 'bring an example case and get rid off,. Now I am searching for an example.
I am very surprised that this type of accident is very very common but I found no case law.
Please help again.
prabhakar singh
(Expert) 14 December 2014
The citations cited below may or may not be
of your use as i am yet to read them but you should go with it to check if it is helpful to you or not,also make searches in india kanoon
under phrase áct of god'as defence in india under motor accident cases.you might get some thing.
http://indiankanoon.org/doc/9873518/
Delhi High Court
Harinder Kaur vs Add.District And Sessions Judge ... on 4 May, 2012
http://indiankanoon.org/doc/1907957/
Supreme Court of India
Patel Roadways Limited vs Birla Yamaha Limited on 28 March, 2000
Author: D.P.Mohapatra
Bench: D.P.Mohapatro
http://indiankanoon.org/doc/139704953/
Delhi High Court
M/S. Pick Up Carriers vs National Insurance Co. Ltd. & Anr. on 4 July, 2012
Author: V. K. Jain
http://indiankanoon.org/doc/1975176/
Bombay High Court
Seema Ganesh Uikey vs State Of Maharashtra And Ors. on 6 June, 2005
Equivalent citations: IV (2005) ACC 500, 2007 ACJ 1090, 2005 (5) BomCR 117, 2005 (4) MhLj 559
Author: P J.N.
Bench: P J.N., B P.S.
These cases may not be found directly touching a motor accident but would at least enable you to distinguish what and what not constitute áct of GOD
prabhakar singh
(Expert) 14 December 2014
please do not miss to read following JUDGEMENT as every aspect is summarized here:
http://indiankanoon.org/doc/878820/
Gujarat High Court
New India Assurance Co. Ltd. vs Takhuben Raghabhai And Ors. on 30 November, 2006
Equivalent citations: 2008 ACJ 989
Author: M S Shah
Bench: M S Shah, A Kureshi
Guest
(Expert) 14 December 2014
Dear Shri Agrawal,
When the policy covers the term of flood, the insurance company becomes liable to pay the claim, may they treat that as act of God, human being or animals. Naturally, in your case, the act was not enacted by the occupants of the vehicle, themselves.
Normally the comprehensive insurance policies contain the terms of "By Flood, Typhoon, Tempest, Hurricane, Storm, Inundation, Cyclone, Hailstorm, and Frost," all of which can be said to be the act of God or natural phenomena.
You may insist the company to bring God to the court to testify why the claim was not admissible if the flood was enacted by Him and the insurance company can become eligible to usurp premium recovered in the name of flood and deny claim on the pretext of act of God.
You may also request the Presiding Officer to set the precedentof his own, instead of following precedents set by others.
The fact cannot be denied that accident occured and lives lost, on whosoever fault that occured, due to act of God or due to fault of driver or by combined actions of both.
