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The Madras High Court on Tuesday had some harsh words about the pernicious field of motor accident claims practice while directing disciplinary action against seven advocates accused of filing duplicate claims.
The Court had taken note of the issue earlier this year in a case concerning a motor accident which took place in February 2017. After three insurance claims were made on the same case by four lawyers, the insurance company Cholamandalam had approached the High Court praying for a re-investigation into the case. The case served to inform the Court about an unofficial turf war between advocates when it comes to motor accident claim cases.
Expressing his dismay at the money-driven, cut-throat nature of the motor accident claims arena and the malpractices that go with it , Justice PN Prakash remarked,
“You do not need to burn the midnight oil and learn hard to become financially successful. It may have taken a K Parasaran or Fali S Nariman, years of hard work, toil and genuine practice, to reach their level of financial strength meritoriously.
Here, in this jurisdiction, all you require, it seems, is knowledge of networking and contact, a corpus to invest and muscle power to exercise control over your territory and you are off on a financial joy ride to make easy money. Huge returns for the investments made, that no stock market or even satta market can seem to yield.”
He went on to condemn the prevailing state of affairs observing that,
“The jurisdiction is ridden with bad and pernicious practices.”
Explaining the pattern characteristic of the field, as gleaned from the affidavits as well as the findings of an Expert Body tasked by the Court headed by Justice (retired) K Chandru, the judge explained,
“It starts with the occurrence of an unfortunate accident. The victim while being ferried in an ambulance or otherwise, is accosted by a representative of the advocate practising in this field or by more than one, competing for the ‘victim’ as a client. The traumatised victim and their families are under huge stress. They know not how to handle the situation. They need money and logistics, men and support….
… In such a scenario and vulnerable state, that sale/purchase of the victims take place as ‘clients’ to the practitioners. The victims are literally ‘purchased’ as chattel and then claims filed within a few days before the claims tribunal where the advocate is practising. Facts are clear[ed] and addresses are altered for convenience of the advocate (records reveal).
Then, the victims who are in need of emergency funds for medical expenses or even funeral, etc, to tide over, are advanced monies by the advocates on record.
Hence, what is clear and evident is the extremity of competition in this jurisdiction to ‘catch and file MCOPs’, because there is a huge bonanza waiting as contingency fees or Champerty.”
The Court, however, also emphasised that it is only concerned with the questionable means adopted by advocates in the field, and not the lucrative gains made through successful practice.
“We need not grudge the financial success or muscle of these practitioners. But, if the adopted means are questionable as they seem to be, then, we have a duty to rein them in, to retain the purity in the administration of justice, which is the heart and soul of the judicial firmament. This Court is, therefore, duty bound to take note lest these practices continued and the decay becomes irreparable.”
In this backdrop, the Court directed the Bar Council of Tamil Nadu and Puducherry to initiate disciplinary action against seven advocates, namely, Advocates V Velu, M Jeevanandham, N Azhagiyakumaran, Raama Radhakrishnan, N Shankar, S Natarajan and M Sivamani.
The Expert Body headed by Justice Chandru had recommended that all seven be suspended for their apparent misconduct. The Court, in response, directed them to file affidavits defending the allegations of their misconduct. The affidavits filed accordingly, however, appears to have done more harm than good.
The stunning averments brought to record by these advocates even prompted the Court to direct that their affidavits be read out in open Court. The judgment records,
“This Court chose to ask the advocates to read the affidavits filed by them, in public court, for good reasons. The averments in the said affidavits were stunning, but not shocking considering the ills which had been identified and flagged off already. There were accusations and counter accusations, advocates accusing one another of fraud/forgery/fabrication, the whole works, in the practice of this jurisdiction…
… Loud reading of the averments made shameful hearing as the mutual recriminations and accusations fell as low as they could. Surely, they would not feel proud, if they were to read it themselves, even in silence. Their conscience should and would prick. They are not ordinary practitioners. They are all experienced beyond 10 to 40 years with exposure to this jurisdiction as specialists. They are in the thick of action and know more than most of us.
From such a vantage point, they have made the averments and they disclose all that is wrong with this jurisdiction. This Court needed to do no more than read them and pit one against the other and reveal to them, as if in a mirror, their conduct, warts and warts only.”
The Court further observed,
“A mere reading of the said affidavits would show what is wrong with this jurisdiction, in the very words of the practitioners. Everything that the EB has noted in its Interim Reports is candidly confessed to and laid bare by the advocates themselves. Upon reading the averments in the said affidavits, it would be clear as daylight that there is a dire need to introduce further measures to cleanse this welfare jurisdiction.
The Court even went so far as to remark, that its order would be complete, “just by extracting from the affidavits.“
In view of the same, Justice Prakash proceeded to order disciplinary action against the seven errant advocates, opining that the court would be failing in its duty if their actions were ignored.
The Court also made special note of the “height of possible misconduct” with respect to three of the accused advocates, who were found to have crossed paths with each other in questionable ways more than once.
“… a reading of the affidavits/additional affidavits filed by Mr M Sivamani, Mr Raama Radhakrishnan and Mr Azhagiyakumaran, all practising in Cuddalore, reveals serious allegations impinging on misconduct of the other.
There are accusations supported by recorded evidence that one or the other was poaching on others’ territory and grabbing clients from the other and even settling claims, of which the claimants were not fully apprised of. There are letters from claimants accusing one or the other advocate of fabricating their signatures or compelling the issue of such letters. Interestingly, there are accusations by one advocate against the other even for forging letters of claimants to the EB itself.”
The Court proceeded to note that these cross-accusations continued even when the present case was going on.
“There cannot be a more direct and damning evidence of possible misconduct in their professional practice, if true.
In effect, the advocates themselves had accused one another of whatever this Court was put on notice of as possible happenings as the underbelly in this jurisdiction which is full of money.
Start to finish, it is moolah or lucre that seems to be dominating the conduct of the practitioners. The greed and avarice seem to have no end, if the mutual accusations have evidentiary foundation.”
The Court went on to add that it was skeptical about whether the motor accident claims arena could be reformed at all. Justice Prakash said,
… Evidence is staring at us as sworn affidavits that one advocate poached on the other’s client, and by paying sums and engaging touts and grabbed the clients and thereby, we have the spectacle of double/duplicate claims. Now, the affidavits read in public court, portions of which have been extracted, have brought home whatever is horrendously wrong with this jurisdiction and the pernicious practices in vogue.
This Court is pained and anguished while reading all these affidavits and the findings in the interim report. This Court is a tad cynical that no matter what steps it takes, the practitioners appear to be one step ahead. That is born of nothing but lure of the lucre they say.”
Among the various malpractices that came within the Court’s scrutiny during the pendency of the case was also a complaint that certain Motor Claims Original Petition (MCOP) case bundles had gone missing. The CB-CID inquiry directed into the same is still pending. The Court, however, highlighted this episode as well in its scathing indictment of the motor accident claims field. As noted in the order,
“This is a shameful episode in the history of the hoary tradition of this Court. If the Court cannot assure the litigants of the safety of the physical documents in the pursuit of justice, then, administration of justice in precept and practice becomes wobbly.”
The Court concludes its order by directing that the State Bar Council expeditiously conduct disciplinary proceedings against the seven accused advocates.
The case has, however, been kept open, in view of the fact that the Expert Body headed by Justice Chandru is yet to file its final report. Inter alia, the Body is also expected to file its recommendation on the procedure for payment of annuity in motor accident claims cases as well as the better implementation of the Detailed Accident Report (DAR) regime.
Further, the Court also took note of the need to implement a mechanism to ensure that emergency care is given to motor accident victims within 48 hours of the accident.
In this regard, Justice Prakash has directed the Advocate General to arrange a meeting with the Secretaries of the State departments of Home, Finance, Transport and Health, the Director General of Police and other stakeholders to discuss how such a mechanism can be implemented. A compliance report on this aspect is to be filed on August 1.
Read the Order: