It is another
matter that in a week since the court-mandated drive against two-wheeler riders not wearing
helmets - police booked close to 7,200 cases across Chennai. That is a little
more than 1,000 cases a day, a substantial number of which involved police
impounding the offender's vehicle. Still there
are isolated law-breakers – many riders simply place their helmets on the
petrol tank or strap them to the handle bar so they can put them on in a jiffy
when they spot a traffic policeman.Away from the main roads, where there are no
checkpoints, motorists have no fear whatsoever of breaking the helmet rule.
Most users of two-wheelers are now aware of where police set up check points
and easily avoid them. But they may not be able to do that for much longer.
Here is some extract of the Judgment dated 8.6.2015 of
the Hon’ble Mr Justice N Kuribakaran in CMA.No.3235
of 2014 where an appeal was preferred against the order of a Tribunal where the respondents were the owner of
vehicle which caused death, a Private Insurer, Secretary, Home Dept of Govt of
Tamilnadu, DGP, Chennai, Surface Transport Ministry of the Union of India.
It was a Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act 1988 against the judgment and decree of MACT, Small Causes Court
at Chennai in July 2014.
In
the preamble of Judgment, it is stated – whether "Dharma" would save
a life or not, wearing of helmet would definitely do so, by acting as a
protective headgear. It is really disheartening to note
that a number of precious lives are lost due to non-wearing of protective
headgear, namely, helmet, as mandated under Section 129 of the Motor Vehicles,
Act, 1988. The pathetic position is that
in spite of the enabling statute and a number of judgments rendered by the
Honourable Supreme Court as well as various High Courts including ours, neither
the authorities' act as per the statue nor follow the directions issued in this
regard.
When
the Parliament enacted a statute viz., Motor Vehicles Act 1988, which mandates
the riders of two-wheelers to wear helmets to protect their heads, in case of
any accident, the subjects are bound to follow the same and the officials are
dutybound to implement it. The case on
hand is the consequence, which would follow, on failure to abide by the
statute, wherein the victim, due to non-wearing of helmet, sustained head
injuries and later, succumbed to the injuries.
The victim was aged about 30 years, a building demolition work contractor. In May 2011, while riding a 2 wheeler was hit by a van belonging to the 1st respondent and insured with the 2nd respondent Insurance Company. For the fatality, a compensation of 17.50 lakhs was claimed. The Tribunal, after enquiry, awarded a sum of Rs. 12,23,100/- as compensation to the claimants. Not satisfied with the said award, the claimants are before this Court. In the claim petition filed by the appellants, the Insurance Company took many defences including non-wearing of helmet by the deceased at the time of accident and that if he had worn the helmet, he would not have lost his life. However, no such plea was taken in the counter statement. Therefore, the contention was not sustained. The Tribunal, based on evidence adduced came to the conclusion that the accident had occurred only because of the rash and negligent driving by the driver of the van. The Tribunal considered the contention of the Insurers that the offending vehicle, namely, the van, did not have a valid goods carriage permit, on the date of the accident. Contending that there was no liability for Insurers, they examined an official of RTO to prove this. The Hon'ble Supreme Court in National Insurance Co.Ltd. vs. Challa Bharathamma and others reported in 2004 ACJ 2094 held that in case of vehicles without permits, though in law, the Insurance Company has no liability and it would be proper for the insurer to satisfy the award. The Tribunal recording that there was no permit, still fastened the liability on the owner of the van and directed the Insurance Company to pay the compensation with liberty to recover the same from the owner of the vehicle. The Court awarded a sum of Rs.20,08,000/- in total enhancing the award of the Tribunal without altering the interest @ 7.5 per annum. The Insurers were directed to deposit the entire amount out of which 8.5 lakhs to which the minor was entitled was directed to be invested in interest bearing Fixed deposit in a Nationalised bank till she attains majority. The Court further added that the case demonstrated the importance of wearing of helmet by the riders of the two wheelers and the evil consequences of non-wearing of helmets. As the case reminded the necessity for helmet, the Court by order dated 11.12.2014, suomotu impleaded respondents 3 and 4 and directed them to answer the following queries: After the enactment of the Motor Vehicles Act, 1988 and enforcement of Section 129 of the said Act, by issuance of Government Orders in various States, including Tamil Nadu, by issuance of G.O.Ms. No.292 Home (Tr.V) Department dated 22.02.2007, why wearing of helmets has not been strictly enforced by the authorities? Why no action has been taken against those two-wheeler riders, who do not wear helmets while riding? How many cases have been registered with regard to non-wearing of helmets for the past 10 years? How many lives have been lost because of non-wearing of helmets, at the time of accident, for the past of 10 years and year-wise details to be furnished, in regard thereto. How many cases wherein head injuries were suffered by the riders of two-wheelers due to non-wearing of helmets? Subsequently, the Central Government was also made as fifth respondent in this case. In the course of the case, a practising advocate, intervened and submitted that helmets all over India are designed with a visor or a regular front vision. The 90 degree side vision is blocked by the side wall of the helmet on both sides. It was contended that this causes helmet wearers meeting with accidents as they are not able to take into the account of the vehicles plying alongside, their distance and speed. He submitted that wearing helmets would be a natural option if helmets are designed to provide visibility on the sides as well. The learned Addl Solicitor General submitted the specification of protective helmet examined and tested by BIS and also produced a scheme of testing and inspection for clarification of protective helmets and sketches showing the internal components of the helmets, namely, peripheral vision-vertical field, peripheral vision-horizontal field and identification of intract point. By giving the above details, he contended that helmets were being manufactured only by technical reports. As per Rule 138 (4) (f) of Central Motor Vehicles Rules, 1989, the manufacturers of two wheelers shall supply protective head gears at the time of purchase of the two wheelers. As the victim was a two wheeler rider, he was mandatorily liable to wear helmet as per Section 129 of the Act. Section 177 speaks about the punishment of offences under the Act. The Court observed that most of the two wheeler riders do not wear helmets and there is also a failure on the part of the law enforcing agencies to implement Section 129, in letter and spirit. In view of Section 129 of the Motor Vehicles Act and also the judgment of the Division Bench of this Court reported in (2007) 5 MLJ 1351 ( cited supra), the authorities are duty bound to see that the riders of two wheelers, wear helmets. The sum total of the discussions above is that all existing laws and norms including the provisions of the Motor Vehicles Act, as in force, are required to be implemented in the right earnest and with all vigour by the authorities of the Union and the State Governments who are responsible for such implementation. Safety measures for drivers and pillion riders may not be a fundamental duty of the State, but public health being concern of the State, it is always open to a welfare State to enact the provisions for safety measures for the drivers and pillion riders. In Tamilnadu as on 31.3.2014 a total of 188.09 lakh vehicles ply on the road. The two wheeler vehicle population is 155.95 lakhs out of total vehicle population. Going by the statistics submitted to the Court - 42,53,038 cases were registered throughout the State of Tamil Nadu for the past 10 years for non-wearing of helmet while riding two wheelers. 41,330 people died because of non-wearing of helmet at the time of accident in the past 10 years. In Tamil Nadu State Transport Corporation (Kumbakonam) Ltd. vs. R.Kalavathi and five others reported in 2015 (1) TNMAC 451 in para-1 this Court observed as follows: No one can invite death voluntarily, which is an offence under Section 309 of IPC, if the negligence is the cause. A precious life could have been saved, if the rider of the two wheeler wore helmet when he met with the accident on 27.09.2009. An avoidable negligence took away the life of the person and also caused injuries to the child who was traveling along with him. Though the issue before the Court is with regard to quantum of compensation awarded to the appellants, the issue about the non-wearing of helmet incidentally arises for consideration as contended by the Insurance Company. This Court cannot close its eyes and mechanically decide the issue alone. This Court is duty bound to look into the root cause for the accident. This Court is bound to go into the basic reason for the case and has a duty to issue remedial direction as per the words of Saint Thiruvalluvar who wrote about 2000 years ago.Therefore, this Court has every responsibility to give appropriate directions, to safeguard the rights including the right to live as enshrined in Article 21 of the Constitution of India as this Court is the guardian of fundamental rights of the citizens. When our fellow citizens are being killed in the road accidents, this Court has to travel beyond its jurisdiction to pass novel and unconventional orders in the interest of the society. In spite of grim situation, if this Court shirks its responsibilities, it would be injustice done to the society by this Court, apart from being incapable of implementing Apex Court as well as this Court's orders. When statute speaks about the mandatory wearing of helmet and the Hon'ble Apex Court and almost all High Courts including ours directed the law enforcing authorities to enforce the statute, there is no escape for the authorities except to see that two wheeler travellers are wearing helmet. However, this court can take judicial note of the fact that more than 50 % of two wheeler riders are not wearing helmets. To save life from accident, this Court incidentally directs the third and fourth respondents to see that all the two wheeler riders wear helmet compulsorily. The State is duty bound to safeguard the rights of the citizens by compelling them to wear helmets. Mere imposition of fine for the violation has proved to be of no use. Therefore, the vehicle documents needs to be impounded; license of the rider is required to be suspended and cancelled after enquiry and then only effective implementation is possible. That apart, people need to be sensitized throughout India. Media needs to sensitize people through free advertisements. When non-wearing of helmet is alleged to be the cause for the death of the victim in this case, interest of justice requires this Court incidentally to exercise power under Article 226 of the Constitution of India to direct the authorities to ask the two wheeler riders to wear helmets compulsorily.Irrespective of law and enforcement of laws, the citizens themselves should take preventive measures to save their lives. This Court expects the family members of the riders of two wheelers to insist upon the riders to wear helmets while driving vehicle and inform the concerned rider that they are depending upon him for their livelihood and his safety and security is important not only for the family but also to the concerned person himself. Extraordinary situations demand extraordinary remedies. While dealing with an unprecedented case, the Court has to innovate the law and may also pass an unconventional order keeping in mind that an extraordinary fact situation requires extraordinary measures…. The Court felt it necessary that in order to meet the unprecedented situation, namely, rise in the number of accidents and loss of lives due to non-wearing of helmets, this Court incidentally issues the required directions to the authorities that : If the rider of a two wheeler drives the vehicle without helmet, it endangers the life of the rider. Till he purchases the helmet, this Court directs the police authorities to invoke powers under Section 206 of the M.V. Act to impound the documents of the vehicles including the driving license of the rider only with sole aim to make the riders to wear helmets. The Court therefore directed that Govtshall inform the public through media on or before 18.6.2015 that wearing of helmet by two wheeler riders is compulsory from 1.07.2015, failing which, all the documents of the two wheeler including driving license of the rider shall be impounded under Section 206 of the Act as per the procedure stated therein and impounded documents would be released only on production of new ISI certified helmet with purchase receipt. There were further directives that – information should be given to people through the media, Respondents are directed to install CCTV cameras in important junctions and Roads including National Highways to monitor the wearing of helmet by two wheeler riders and those fail to wear helmets have to be issued notice about the non-wearing of helmet and to cancel the license after enquiry. The Central Govt shall go into the details of the design of the helmets to provide visibility on the sides as well as at the front of the wearer of helmet, as suggested by the intervenor. A landmark judgment indeed ! With regards – S. Sampthkumar
10th July 2015.
