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Compensation Act 2017

Ana Madigibuli
Saturday, February 10, 2018

NOT being compensated for a loss of a loved one's life through a fatal car accident is a hard thing for any family.

In many ways it brings no justice for the family that has lost a loved one.

After three years since the accident Arvind Singh, 55, still laments the loss of his son Ashneel who was 26 at the time of the accident at Edingburgh Drive as though it just happened yesterday.

And he has every reason to do so as what's worse is there's been no justice or closure to the Singh family's loss.

The family has received no comfort at all and after knocking on several doors they have been told that there is nothing authorities can do to bring justice for their loss.

Ashneel was struck down by a car driven by a South African diplomat.

This case was highlighted by the media back in 2015 and questions raised included the circumstances surrounding diplomatic immunity and whether it should apply at all times.

Police alleged back then that the 59-year-old diplomat was suspected to be under the influence of alcohol and that too was why many questions was raised about the fairness in this case.

The driver was reported to be the first secretary at the South African High Commission in Fiji, Theo Mostert.

He was taken to the Totogo Police Station where he was interviewed and later released.

Police at that time said Mr Mostert could not be remanded in custody because he had diplomatic immunity under the Vienna Convention and the case was a matter between Fiji and South Africa.

Under the Vienna Convention on Diplomatic Relations, to which Fiji is a signatory, a diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State.

The convention states the person of a diplomatic agent shall be inviolable, he shall not be liable to any form of arrest or detention and the receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.

However the immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under Article 37 of the convention may be waived by the sending State- but this waiver must always be clear.

The convention states this waiver must always be expressed.

Rahul Prakash, a cousin of the deceased, said earlier the Singh family were informed of the special privileges of the diplomat but this brought no comfort to them. So the introduction of the new implemented 2017 Accident Compensation Act that would benefit all Fijians with its No Fault Compensation Scheme was like a breath of fresh air to the Singh family.

Not because they will receive any compensation for Ashneel's death but because it meant other accident victim's families would now be compensated under the Act and would not suffer the way they had to.

Mr Singh said the old Compulsory Third Party Policy should have been abolished a long time ago because it didn't cover issues like diplomatic immunity.

"My son died in a car accident and we didn't get compensated under the Third Party Policy because the suspect had diplomatic immunity and he could not be charged leaving no insurance cover," Mr Singh said in a recent interview with this newspaper.

"This was hard for us because not only did we lose my son, we lost hope of getting compensated as no one was charged for his death."

The Singh's never knew of diplomatic immunity until their son Ashneel was involved in this fatal accident.

"It's good to finally see some changes happening where car accident victims will get compensated for injuries and deaths of loved ones, regardless of the situation. especially when it was not their fault."

Accident Compensation Commission Fiji CEO Parvez Akbar said with the new Accident Compensation Act victim's family (in the case of death) or the victim (in case of injury) would apply.

This means that all road accident victims would be compensated.

In other words the Singh's would have been compensated if the act was in place when Ashneel died.

"The Accident Compensation scheme applies to all victims of motor vehicle accidents, regardless of their resident/non-resident status," Mr Akbar said.

"In the event of a death, the victim's family may apply for compensation, which will be assessed by the commission. In terms of the compensation amount, Section 5 of the Accident Compensation Regulations prescribes that the commission may make a lump sum payment of $75,000 under the no fault compensation scheme in respect of death suffered by a person as a result of an accident in Fiji.

"The compensation amounts are not aligned to motor vehicle types, but rather by the severity of the injury and the death of accident victims.

"Section 5 of the Accident Compensation Regulations prescribe that the commission may make a lump sum payment under the no fault compensation scheme in respect of personal injury suffered by a person as a result of an accident in Fiji and any such payment will not exceed, a) in the case of permanent partial incapacity $75,000, b) in the case of permanent total incapacity $150,000 and c) in other cases other than (stated in a and b) $75,000."

He said in terms of compensation payout with the new Act, there was no specific timeframe for the process of applications, as it would be assessed on a case by case basis (taking into account exclusions /other consideration stipulated under section 4 of the Accident Compensation Regulation 2017).

"However Section 21 of the Act requires the commission to consider the application as soon as practicable once received. Section 5 of the Accident Compensation Regulations requires that the applicant indicates his or her acceptance of the commission's decision and the compensation amount within 28 days of being informed of the same.

"The Motor Vehicle Accident Levy is subject to the classification of the motor vehicle. Queries from the public has largely been on the process for payment of motor vehicle accident levies, the compensation amounts, and the coverage (i.e. who is covered) under the compensation scheme.

"Generally there is a sense of relief that there is no longer the need to engage lawyers and have a long drawn out battle with insurance companies."

Tower Insurance general manager Sarah Jane Wild said due to privacy reasons the insurance company could not comment on specific cases relating to compensation payout (in the case of Ashneel Singh's death).

However Ms Wild said in terms of pending payouts, if it was a valid Compulsory Third Party (CTP) Policy claim and the accident occurred prior to January, 1, 2017, the victims would follow the old process and either lodge a claim (if they hadn't lodged yet) or continue with their claim that they had with the insurer that had the CTP cover.

She said the compensation payout timeframe under CTP varied depending on the circumstances.

"I think it's important I provide clarity on the difference between the cover that is provided under CTP and what is provided under a Comprehensive Motor Policy," Ms Wild said.

"CTP covers the driver for any injury or death that they caused to other parties as a result of them driving their vehicle. It was subject to specific terms and conditions as set out in the Motor Vehicles (Third Party Insurance) Act 1948 and the Motor Vehicles (Third Party Insurance) Regulations 1949.

"Liability had to be established before the injured party could claim.

"The Comprehensive Motor Policy covers the vehicle, and the liability that they have for the other party's vehicle. It does not cover their liability for injuries/death to other people unless they had extended their cover by incorporating Passenger Risk cover.

"Often people take out loans to purchase their vehicle, if they do that, the institution that they have borrowed from will note their interest on the insurance policy. If there is an accident and the car is not repairable, the insurer will settle at the market value or the sum insured of the car, firstly paying the amount of the loan remaining and then if there is any balance left, paying that to the insured.

"If a claim is settled on this basis, often referred to as a Total Loss, and the insurer has paid for the vehicle, they take ownership of it in its damaged state."

She said if a vehicle owner wants to cover the car, they would need to take out a Comprehensive Motor Policy with a motor vehicle insurer.

"The new compensation Act only covers injury or death from a motor vehicle accident.

For the Comprehensive Motor Policy different rates apply for different vehicle descriptions or class," she said.

"Rates vary based on sum insured, experience of driver and type of use whether it is for business or private use."

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