Insurance Helpline with cedric Stephens

Question: I was involved in an accident on July 28, 2006. It took place on Spur Tree Hill, near the same spot where a serious accident occurred three weeks ago. A truck, heading towards Santa Cruz, got out of control. My baby son suffered a broken collar bone. I received injuries also. My car, which was insured third party, was written off. The driver fled the scene. The insurers of the truck told me that the driver did not have a licence. What can I do to get compensation?

- hpatrina@hotmail.com.

Answer: The system set up to pay the victims of motor vehicle accidents is dysfunctional. This is why nearly 12 months after the mishap, getting compensation seems so unlikely.

The Motor Vehicles Insurance (Third-Party Risks) Act is a product of our ex-colonial masters.

Forty-five years after independence, their heirs have made few changes to that law. It is business as usual. This is in spite of the bloodshed that takes place daily on our roads.

There is mounting evidence that the system does not serve the interests of you and me. In the meantime, according to a Reuters report published in this newspaper, even U.K. insurers have admitted that their personal- injury claims process is "wasteful, time-consuming (and) completely broken", in the wake of moves by the government to reform the system.

Section 4 of the act says users of motor vehicles are required to be insured against third-party risks. Insurance, according to Section 5, should provide coverage in respect of liability incurred in respect of "(i) the death of, or bodily injury to, any person; and (ii) any damage to property, caused by or arising out of the use of the motor vehicle on the road."

In theory, accident victims like you and your son should have no problems in getting redress. As you have found out, dealing with the system is a major struggle.

The insurers of the truck do not have to pay for you and your son's injuries or to replace your vehicle. Why? Because the truck driver did not have a licence.

Coverage applies only when "the person driving is permitted in accordance with the licensing or other laws - or has been so permitted and is not disqualified by order of a court of law - from driving."

Even though the law created a number of loopholes to force insurers to pay certain types of claims which otherwise would not be honoured, driving without a licence is not one of them.

Owner should compensate

Section 4 (1) of the law suggests that the truck owner should compensate you. This is even though he was not driving when the accident occurred.

It says that "it shall not be lawful for any person to use or to cause or permit any other person to use a motor vehicle on a road, unless there is in force in relation to the user of the vehicle - such a policy of insurance - in respect of third-party risks as complies with the requirements of this act."

Non-compliance is a criminal offence under sub-section (2). Since the truck was not reported stolen it is reasonable to assume that it was being driven with the owner's permission when the accident occurred.

Even if the police failed to locate the driver, they should have seized the truck and brought criminal charges against the owner.

Hire a firm of investigators to get information about the truck owner.

Thinking to sue

Find out where he lives, the type and value of his assets and, information about his income. The aim of the enquiry is to allow you to decide whether it makes sense to sue for damages in a court of law, if necessary.

The greater the value of the truck owner's assets, the more likely it is that you'll recover, even if you have to wait a while.

If the information proves favourable, seek the services of a trusted attorney. Make sure that you get an estimate of the fees and receive regular updates.

Insurance companies form part of the system that compensates victims of road accidents. Neither the third-party's insurers nor the company you were insured with saw it fit to give you information to help you obtain recovery for your losses.

On the basis of the planned moves by the Financial Services Commission to introduce motor claims best practices, it seems that insurers are also part of the problem.

Cedric E. Stephens is an insurance consultant. He provides free, independent information and advice to consumers who need help to solve their problems. Email: aegis@cwjamaica.com