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No-fault insurance is long overdue

By Pravin Bowry | July 3rd 2013

By Pravin Bowry

Kenya: With the ever increasing motoring community and the unabated rise in road accidents, personal injury claims for compensation need to be addressed. To succeed in a claim the victim in a road accident must prove negligence against the driver.

Police abstracts, P3 forms, searches at Registrar of Motor Vehicles and the Registrar of Companies to ascertain the ownership, medical reports, high legal costs, uninsured vehicles, run- away drivers and falsified records are some of the hurdles.

The reality is that more often than not, even where there is third-party insurance, hundreds of claimants with very grave injuries receive no compensation.

And we are talking of men, women and children confined to bed and hospitals for a life time. Paraplegia, brain damage, spinal injuries, damage to other organs are the chilling realities of Kenyans who need help.

 The matter of compensation has been previously addressed and there was the Hancox’s Commission of Inquiry into the Insurance Industry set up in 1986. The recommendations of the Report were never made public and the report is somewhere in the archives, forgotten, dead and buried. 

Maybe the same should be resurrected and some hope of compulsory compensation revived. The great Kenyan jurist and visionary the late Chief Justice Madan in a Judgment delivered in 1979 in the case of Karanja Kago vs Karoki Nganga (Court of Appeal No.1 of 1979) made a plea to the Parliament on behalf of the uncompensated victim in a very graphic, bold and passionate pronouncement. Justice Madan had these wise words on the subject:

“A real contribution which I wish to make is to emphasise for the attention of the authorities that be the barren vacuum and impotence of the situation whereby a person who suffers serious and grave injuries is left without any monetary redress because his claim fails for want of negligence on the part of the driver of the other vehicle involved in the accident or inability to trace him.

The payment of some form of compensation to such unfortunate victims by the State must be devised.  Without any monetary assistance as they are condemned to object lives which forms a stain upon our society.

In their benevolent outlook for the welfare of the society, our MPs should pass a law establishing a Motor Insurers’ Bureau to provide for payment of compensation in cases where there is no insurance or effective insurance, covering the driver of the vehicle involved in the accident of which our matatus were until recently a sorrowful and dejecting example. 

The legislation could provide for payment of compensation in the case of uninsured as well as untraced drivers and other ancilliary matters.

In my opinion, Parliament, whose wisdom and munificence is unlimited already, owes the enactment of such legislation to the nation to give people a new social welfare deal that would be a first in Africa.  I am confident others would follow our example.

The rights of victims of crime have been acknowledged in the Constitution and legislation is awaited, and hopefully the plight of the uncompensated victims will receive attention. Victims of road accidents in Kenya have had an ambivalent relationship with the law, with the insurance industry being the biggest culprit in leaving thousands of injured uncompensated.

Many insurance companies have wound up (notably Kenya National Assurance Company Limited in which the Government had a stake) leaving both the insured and the injured in doldrums. The plight of the injured is made worse by legal delays, brokers and other “ambulance chasers” unprofessional lawyers and even the successful litigants often do not see the fruits of judgment.

Motor injury Ombudsman, victim support groups, taming of insurance companies by giving a time frame to settle the claims, are some suggestions.

But the solution lies in the concept of no-fault insurance that exempts individuals from the usual liability for causing bodily injury in the case of car accidents.  When individuals purchase “liability” insurance under those regimes, the insurance covers bodily injury of the insured and the insured’s passengers in a car accident, regardless of which party would be liable under ordinary common law tort rules. 

No-fault insurance would lower premium costs by avoiding expensive litigation over the cause of accidents, while providing quick payments for injuries or loss of property.

Further, no-fault systems often give “fixed” compensation for certain injuries regardless of the unique aspects of the injury or the individual injured.

The Law Reform Commission with the insurance industry must address the predicament of those unfortunate road accident victims left to be looked after by family members, and the State must come to the rescue of this particular class of underprivileged members of society by setting a meaningful legal framework.

The writer is a lawyer.

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