Road Accidents - PIL - Art.32 of Indian Constitution - Apex court made some directions to follow =
The petitioner is a leading orthopaedic surgeon of the country and
the Chairman and Head of the Department of Orthopaedic Surgery in the Ganga
Hospital at Coimbatore. He was/is also the President of the Indian
Orthopaedic Association, the largest professional body of orthopaedic
surgeons in the country. In the course of his professional duties spanning
over several decades the petitioner, while rendering professional service
to victims of road accidents, has come to realise that the large number of
accidents that occur every day on the Indian roads, causing loss of human
lives besides loss of limbs and other injuries resulting in human
tragedies, are wholly avoidable. In the light of the experience gained and
propelled by a desire to render service beyond the call of duty, the
petitioner has filed this writ petition under Article 32 of the
Constitution seeking the Court’s intervention, primarily, in the matter of
enforcement of the prevailing laws and also seeking directions for
enactment of what the petitioner considers to be more appropriate
legislative measures and for more affirmative administrative action. The
petitioner also seeks directions from the Court for upliftment of the
existing infrastructure and facilities with regard to post-accident care
and management to minimize loss of life and physical injuries to victims of
road accidents.
2014 ( April.Part ) judis.nic.in/supremecourt/filename=41438
P SATHASIVAM, RANJAN GOGOI, N.V. RAMANA
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 295 OF 2012
S. RAJASEEKARAN ... PETITIONER(S)
VERSUS
UNION OF INDIA & ORS. ... RESPONDENT (S)
J U D G M E N T
RANJAN GOGOI, J.
1. The petitioner is a leading orthopaedic surgeon of the country and
the Chairman and Head of the Department of Orthopaedic Surgery in the Ganga
Hospital at Coimbatore. He was/is also the President of the Indian
Orthopaedic Association, the largest professional body of orthopaedic
surgeons in the country. In the course of his professional duties spanning
over several decades the petitioner, while rendering professional service
to victims of road accidents, has come to realise that the large number of
accidents that occur every day on the Indian roads, causing loss of human
lives besides loss of limbs and other injuries resulting in human
tragedies, are wholly avoidable. In the light of the experience gained and
propelled by a desire to render service beyond the call of duty, the
petitioner has filed this writ petition under Article 32 of the
Constitution seeking the Court’s intervention, primarily, in the matter of
enforcement of the prevailing laws and also seeking directions for
enactment of what the petitioner considers to be more appropriate
legislative measures and for more affirmative administrative action. The
petitioner also seeks directions from the Court for upliftment of the
existing infrastructure and facilities with regard to post-accident care
and management to minimize loss of life and physical injuries to victims of
road accidents.
2. In the context of the aforesaid effort, the petitioner has set out
detailed statistics published by the Ministry of Road Transport and
Highways (MoRTH) in the volume “Road Accidents in India 2010” highlighting
the extent of increase of road accidents and fatal cases between 1970-2010.
In the aforesaid publication in which the relevant figures are pegged to
the year 2010 it is reported that road traffic accidents in the said year
i.e. 2010 numbered nearly 5,00,000 resulting in approximately 1,30,000
deaths and serious injuries including amputation of limbs to over 5,00,000
persons. One serious road accident in the country occurs every minute; and
one person dies in a road traffic accident every 4 minutes. Road traffic
accidents, therefore, have the potential of being one of the largest
challenges to orderly human existence necessitating immediate and urgent
intervention. Not only the existing laws, which by themselves are
inadequate, are not being implemented in the right earnest; the need for
changes in such laws and upgradation thereof, though admitted, are yet to
see the light of the day. Besides, victims of road traffic accidents die
in large numbers due to lack of timely and proper medical attention which,
inter alia, is caused by avoidable disputes with regard to jurisdiction of
the administrative authorities including the police who are to deal with
the matter instead of rendering immediate medical aid to the victim.
Failure to provide immediate medical attention resulting in death and
irreversible injuries is also due to inadequate facilities for early
removal of the victims of road accident to the nearest hospitals/medical
centres. Inadequate number of ambulances and other suitable modes of
transport to transport the victims of road accidents; the absence of trauma
centres in different hospitals, and lack of even basic health care
facilities are additional features that contribute to the unimpeded growth
of the imminent menace to human life. Such unabated growth, it may be
mentioned, is reflected in the figures beyond 2010 also. In fact, the
corresponding figures of the year 2012 available in “Accidental Deaths and
Suicides in 2012” a publication of the National Crime Records Bureau show a
uniform graph for all the relevant figures i.e. number of road accidents;
fatal cases as well as serious injury cases.
3. The petitioner has not visualized the magnitude of the problem that
he seeks to highlight on the basis of his individual perceptions. He seeks
to base his contentions on reports submitted by the Working Groups
constituted by the MoRTH to survey the different facets of the problem as
well as research and authoritative articles published on the subject by
persons of eminence. It will, therefore, be necessary to briefly outline
what has been dealt with and indicated in the said reports and
publications.
4. At the outset, there are the reports of four Working Groups set up by
the first respondent to submit recommendations and suggestions on short
term and long term measures to curb road accidents in the country. The
said four Working Groups were required to go into four ‘Es’ of road safety,
namely, Engineering, Enforcement, Education and Emergency Care.
5. According to the Working Group on Enforcement, as on date, India has
the distinction of having one of the highest number of accidents and
fatalities on roads. After a detailed study the Working Group has
recommended, in the main, the following measures for road safety :
(a) Amendment of Motor Vehicles Act to increase fines and to provide
for revision of fines every 3 years based on the Consumer Price
Index.
(b) Overloading of commercial vehicles should be prosecuted under
the Damage to Public Property Act. Liability should be imposed
on the transporter, consignor and consignee.
(c) Use of Road Safety devices – there should be no exemption for
wearing helmets (such as the exemptions in favour of women in
some States). Seatbelts should be compulsory for driver and
front-seat passenger. On national highways, seatbelts should be
compulsory for back-seat passengers, too.
(d) In case of drunken driving (Section 20/185, MV Act), the norm
should be suspension of the driving license and should be
strictly enforced by traffic police and courts.
(e) Traffic Violations Database should be maintained to record data
of violating vehicles, drivers and offences committed. This
would help identify habitual offenders who could be awarded
enhanced punishment.
(f) Checking of overcrowded passenger vehicles, and cancellation of
permit.
(g) Improvement of road engineering: Concerned departments must
inspect roads where frequent accidents occur.
(h) Digitization of driving licenses in the country, so that
defaulters cannot obtain other licenses (upon cancellation or
suspension of their license).
(i) Issue of Fitness certificate for commercial vehicles should be
based on stringent inspection.
6. The Working Group on Emergency Care took note of the fact that a
large number of potentially salvageable patients die needlessly due to
delay in retrieval and inadequate or ineffective treatment. In its report
the Working Group had enumerated the following problems in accident and
emergency care delivery in India :
(i) The general public does not possess basic first aid skills.
(ii) There is no standardized toll free access number to call
emergency medical help.
(iii) Non availability of appropriate and safe transport for injured
patient in the form of road ambulances, air ambulances etc.
(iv) The ambulances are inappropriately/ inadequately equipped.
(v) There is lack of awareness regarding Hon’ble Supreme Court of
India’s directives regarding the right to emergency care for RTA
victims and the legal protection available to good Samaritans
who offer help to a victim of a road accident.
(vi) There is no provision to ensure adequate compensation to an RTA
victim in case the accident causing vehicle does not have a
third party insurance.
(vii) Majority of the drivers do not have a personal mediclaim policy
to cater to their emergency medical needs in case of an
accident.
7. Insofar as the report of the Working Group on Engineering is
concerned it was observed that the road network in the country is
historically developed with a view to providing accessibility rather than
mobility. In the said report it was also noted that the available funding
for maintenance and repairs of National Highways Network is only 35-40% of
the estimated fund requirement.
8. Insofar as road safety education is concerned the following extract
from the report of the Working Group on Road Safety Education would
highlight the dimensions of the issue :
“On an average, 20 percent of all people killed in road accidents in
developing countries are under the age of fifteen. This is twice as
high as in the developed world. In India, there is one road accident
every minute, and one fatal accident every fourth minute. There are
as many as thirty five accidents per thousand vehicles, and the
drivers involved in road crashes are in the age group 20-40 years.
Two wheelers and cars contribute to 50 percent of the total accidents.
Road crashes cost approximately one to three percent of a country’s
GDP. Other than road engineering issues, most of the accidents are
caused by the drivers fault. While some experts say it is around 50
percent, the MoRTH said that it was around 80 percent. Whatever be
the exact figure, we do need to focus on education and enforcement for
improving driver performance.”
“Road Safety Education should not remain a matter of words. Students
must be educated in a way that brings them alive to the issues of road
safety.
The report further states that, “Enforcement has a key role in
encouraging improved road users behavior. The general deterrence
provided by enforcement authorities will promote public perception
that “compliance everywhere all the time” is the best way of avoiding
penalties and improving safety. Often fear of the stick works better
than the stick itself.”
9. A detailed reference has been made by the petitioner to the report
submitted by Shri S. Sundar [Former Secretary in the Ministry of Surface
Transport and Distinguished Fellow of The Energy and Resources Institute
(TERI)] under whom a Committee was constituted in the year 2005 to
deliberate and make recommendations for creation of a dedicated body on
road safety and traffic management. The Committee was also requested to
draft the National Road Safety Policy for consideration of the Government.
While submitting its report in February, 2007 the Committee, inter alia,
recommended a draft National Road Safety Policy which was approved by the
Cabinet in its meeting held on 15.3.2010. The said Policy outlines the
initiatives that are to be taken by the Government at all levels to improve
road safety in the country. The major initiatives under the Policy are :
(a) To promote awareness about road safety issues.
(b) To ensure safer road infrastructure by way of designing safer
road, encouraging application of Intelligent Transport System
etc.
(c) To ensure fitment of safety features at the stage of designing,
manufacture, usage, operation and maintenance.
(d) To strengthen the system of driving licensing and training to
improve the competence of drivers.
(e) To take measures to ensure safety of vulnerable road users.
(f) To take appropriate measures for enforcement of safety laws,
(g) To ensure medical attention for road accident victims.
(h) To encourage human resource development and R&D for road safety.
(i) To strengthen the enabling legal, institutional and financial
environment for promoting road safety culture in the Country.
10. In an article authored by Justice A.R. Lakshmanan, erstwhile Chairman
of the Law Commission, which appeared in the newspaper “The Hindu” on 10th
July, 2011 a number of suggestions have been offered for road safety. The
most significant of the aforesaid suggestions and relied upon by the
petitioner may be usefully extracted below.
“a) For ensuring the safer use of roads it has been suggested that
all State Governments notify rules in their respective states
for the following:
. The removal and the safe custody of the vehicles including
their loads which have broken down or which have been left
standing or have been abandoned on a highway;
. the determination, maintenance and management of parking
places for the use of vehicles and animals and the fees, if
any, which may be charged for their use;
. prohibiting the use of footpaths or pavements by vehicles
or animals;
. prohibiting or restricting the use of audible signals at
certain times or in certain places;
. regulating the loading of vehicles and in particular,
limiting the loads carried in relation to the size and
nature of the tyres fitted;
. a right of way for ambulances and fire brigade vehicles;
. the control of animals likely to frighten other animals or
pedestrians;
. the control of children on highways;
. prohibiting the riding by more than two persons at the
same time on cycles other than cycles designed for the
purpose;
. prohibiting the riding of more than two cycles abreast;
. limiting the age of drivers of vehicles;
. regulating the driving of vehicles of vehicles and animals
at night; and
. regulating the use of highways by pedestrians.”
b) For ensuring safer public vehicles it has been suggested that
the State Governments of all States notify the following rules.
a) The width, height and length of vehicles;
b) The size, nature and condition of wheels and tyres;
c) Brakes;
d) Lamps and reflectors;
e) Warning devices;
f) The inspection of vehicles by prescribed authorities;
g) Regulating the particulars exhibited on vehicles and the
manner in which such particulars shall be exhibited.
c) It has been suggested that the State Governments notify rules
for regulating the use of public vehicles in the following
manner:
. the documents, plates and marks to be carried by public
vehicles, the manner in which they are to be carried and
the language in which such documents is to be expressed;
. the badges and uniforms to be worn by drivers;
. the fees to be paid for permits, driving licences,
duplicate copies of permits or driving licences, plates,
badges, and appeals preferred before statutory authorities;
. the limiting of the number of public vehicles or public
vehicles of any specified class or description, for which
permits may be granted in any specified area, or on any
specified route or routes;
. the fixing of maximum or minimum fares or freights;
. the maximum number of passengers or the maximum quantity
of goods that may be carried in a public vehicles;
. the conditions subject to which passengers, luggage or
goods may be carried in a public vehicle;
. the construction and fittings or and the equipment to be
carried by public vehicles, whether generally or in
specified areas or on specified routes; and
. the safe custody and disposal of property left behind in
public vehicles;
d) It has been suggested that the State Governments notify the
following Regulations for Traffic Personnel to enforce discipline
in regard to :
. Non-observance of traffic rules;
. Jumping the red light;
. Crossing the red light;
. Driving without valid licence;
. Driving under the influence of liquor/drugs;
. Driving while talking on the mobile;
. Driving without helmet;
. Overloading of passengers in autos. In shared auto-
rickshaws, the driver’s seat is often occupied by three
persons.
. An entire family (minimum four persons) riding a
scooter/motorcycle without realizing that this is a traffic
offence and such travel is at the risk of their lives;
. Haphazard parking of auto-rickshaws, vehicles and
government buses.
. Over-speeding, crossing the yellow line or violating
traffic rules by scooter/motorcycle;
. Violation of traffic signals on a one-way road or complete
violation of the traffic signal;
. “Jam-packed” or extremely crowded stage carriages;
. Confiscation of Vehicles fitted with LPG cylinders which
are meant for home kitchen, and arrest and prosecution the
owners/drivers of such vehicles;
. Installation of weigh bridges at all entry and exist
points to and from a city as well as toll collection
centres to keep overloading of vehicles under check;
. Round-the-clock mobile court/mobile policing of roads, not
limited to peak hours.
. Digging of roads by various public utility agencies, like
Telephone or Electricity Corporations, causing
inconvenience to road-users.
. Common traffic violations such as driving in the wrong
direction, breaching speed limits, and jumping traffic
lights.”
11. Apart from seeking appropriate directions in the light of the above
suggestions, the petitioner also seeks the constitution of a monitoring
agency to ensure that the said suggestions are notified by the State
Governments within a time frame.
12. Apart from the above suggestions the erstwhile Chairman of the Law
Commission had also suggested an amendment in the Seventh Schedule of the
Constitution to enable enactment of a central legislation with regard not
only to national highways but also in respect of roads and traffic thereon
in addition to vehicles other than mechanically propelled which as of today
falls under Entry 13 of the State List.
13. Taking into account the recommendations and suggestions contained in
the above reports of the Working Groups and the other publications and
views referred to, the petitioner has contended that in the larger interest
of the members of the public using the national highways, the State
highways and all other arterial roads that connect the different places and
centres of the country the suggestions offered by the petitioner would be
worthy of consideration for incorporation in the firm directions of this
Court under Article 142 pending the necessary enactment thereof by means of
appropriate legislation by the Union and the States wherever required. The
core of the said suggestions are as follows:
(a) Owing to the severity of the problem and the fragmented nature
of responsibility of the concerned Ministries/departments, the
PMO should have direct responsibility. There should be a central
coordinating body under the PM’s direct leadership with order
it and powers and definite targets.
(b) Directions to ensure:
(i) Liability of IRDA in case person is denied treatment
due to delay in sanction of insurance money.
(ii) Equal, if not higher, compensation to those persons
injured as is given to those who have died as a
result of the RTA.
(iii) All vehicles must have compulsory third-party
insurance. Currently, 22% vehicles are uninsured.
(iv) Liability for emergency expenditures of injured, so
that the injured/their family do not have to take
recourse to touts.
(c) Directions to R-2 for strict enforcement of traffic violations,
since every traffic violation is a potential RTA. R-2 should
maintain a minimum number of traffic policemen – as per the road
conditions and population – in a region. It must ensure that
such personnel are not diverted for any other reason (such as
‘bandobust’).
(d) Annual vehicular inspection should be made compulsory by R-1.
Such inspection should involve the manufacturers of the vehicles
also as they possess the requisite knowhow of the particular
vehicle. R-1 should be directed to ensure that roads are used
for transportation alone and not other purposes such as hawking,
religious processions, marriages etc.
(e) Road safety education should be incorporated in school curricula
and inculcated in every citizen.
(f) Directions to R-1 regarding licensing:
(i) There should be a cap on the number of licenses that can
be issued by the concerned official in one day, so that
every application for a license is strictly checked and
evaluated. Petitioner suggests a cap of four licenses
issuable per official per day.
(ii) Prescribe minimum education and qualification standards
for drivers.
(iii) Test the knowledge of safety standards, roads rules,
signboards, road markings etc. in addition to mere ability
to drive. Licenses ought not to be issued, as presently
done, on the basis of the criteria of ability to drive
alone.
(iv) Licensing should be based on biometrics to prevent
multiple licenses issued to one person.
(v) Computerized licensing to track offences and introduce a
point-based penalty system for offenders.
(vi) Bar coding of vehicles and licenses to link to the penalty
system, the annual fitness certificate of the vehicle, and
insurance forms for instant information.
(vii) Restrictions on the number of new vehicles registered and
number of vehicles a family/person can own, methods to
ensure road-worthiness of vehicle, periodic license renewal
etc.
13. The Respondent No. 1, namely Ministry of Road Transport & Highways
(MoRTH) has filed a detailed counter affidavit in the case highlighting the
steps undertaken by the Ministry as well as other associated
Ministries/Departments of the Union to combat the challenge posed by the
huge number of road accidents that occur throughout the length and breath
of the road network in the country. The contents of the said affidavit
will have to be noted in some detail to comprehend the steps that have been
undertaken and also the plans and schemes that have been evolved or are in
the process of being evolved as possible answers to the problem.
(a) According to Respondent No. 1, on 15.03.2010 the Government of India
has approved the National Road Safety Policy. The salient features of
the said Policy are:
“…… promoting awareness, establishing road safety information
data base, encouraging safer road infrastructure including
application of intelligent transport, enforcement of safety laws
etc.”
(b) The National Road Safety Council as contemplated under Section 215 of
the Motor Vehicles Act, 1988 (hereinafter for short ‘the Act’) has
been constituted by the Respondent No. 1 and advisories have been
issued to the States to set up Safety Councils at the State and
District levels. The functions of the National Council set up under
the Act are:
“The Councils and Committees referred to in this section shall
discharge such functions relating to the road safety programmes
as the Central Government or the State Government, as the case
may be, may, having regard to the objects of the Act, specify.”
(c) An amendment to the Act to provide enhanced penalties for different
offences has been passed by the Upper House on 8.5.2012 and the Bill
is presently pending before the Lok Sabha. So far as overloading of
vehicles, a major cause of road accidents, is concerned, according to
the Union, the enforcement of the law in this regard is the
responsibility of the State Governments. 27 States, according to
Respondent No. 1, have taken necessary action for enforcement of the
provisions of Section 114 of the Act. Similarly, enforcement of the
provisions contained in Section 129 of the Act regarding wearing of
helmets and Rule 125(1) of the Central Motor Vehicles Rules, 1989
(hereinafter for short ‘the Rules’) with regard to seat belts etc. is
the responsibility of the State Governments. According to the
respondent No. 1, in collaboration with NIC, a national register as
well as State registers have been created to act as a centralized
database for driving licenses and registration certificates.
Furthermore, it is stated that “out of 993 RTOs, 992 RTOs have been
connected with State registers/national register through VPNoBB/LL
connectivity and RTOs/DTOs data is being replicated at State
Register/National Register in Asynchronous Mode. The National and
State Registers are customized with portal VAHAN & SARATHI software
for compiling/ digitizing the data on DLs and RCs respectively. State
Transport Departments and Enforcement agencies have been provided
access to the data on National Register and State Registers.”
(d) Insofar as fitness certificates for commercial vehicles under Section
56 of the Act is concerned, according to the Respondent No. 1, it is
the States who are responsible for issuing fitness certificates to
commercial vehicles. However the Ministry (MoRTH) has designed model
inspection and certification centres for effective inspection and
certification of motor vehicles from the point view of safety and
emissions. Furthermore, according to the Ministry, the installation
of model Centres in 10 States has been planned and 9 centres have been
sanctioned till date which are at different stages of implementation.
(e) Insofar as road engineering is concerned, according to the Ministry,
road safety has been made an integral part of the road design and road
safety audit of the selected stretches of national highways and
expressways are being regularly conducted. Further more, according to
the Ministry, a Committee has been constituted for formulating a
National Ambulance Code which has since been finalized. Incorporation
of the said Code within the framework of the Central Motor Vehicles
Rules is under consideration. In its counter affidavit, the Ministry
has also stated that a Committee has been set up to make
recommendations for a National Helpline for road accident victims
based on a common toll free number (1033) with dedicated round the
clock call centres. At the said centres, calls from the State
Highways will also be accepted and will be forwarded to the concerned
agency for providing relief.
(f) So far as road safety education is concerned, it has been stated in
the counter affidavit of the respondent No. 1 that a syllabus in first
aid has been made compulsory in driving schools; plan are underway for
incorporating a chapter for road safety for school children and a book
called “Sign Language” containing a chapter on helping road accident
victims has been published and circulated in adequate number to all
State Government schools as well as schools affiliated to the CBSE.
(g) Dealing with the issue of compulsory insurance the Ministry has
stated that under Section 146 of the Act there is a prohibition on use
of a motor vehicle which has not been insured. According to the
Ministry it has issued a Circular dated 20.6.2013 to all State
Governments to enforce the aforesaid provision of the Act.
(h) Insofar as licensing and prescription of minimum education and
qualification for drivers is concerned, according to the Ministry,
adequate provisions exist under the Act as well as the Rules. So far
as enforcement thereof is concerned, according to the Ministry, a
Committee has been set up to recommend staffing norms for the office
of Motor Licensing Officers. Further more, according to the first
respondent, setting up of adequate number of Institute of Driving
Training & Research (IDTR) and Regional Driving Training Schools
(RDTs) is contemplated and plans are also afoot to link these centres
with the jurisdictional RTO for conducting necessary tests before
issuing driving licenses.
(i) Refresher training course for heavy vehicle drivers are being
organized to inculcate safe driving habits and to acquaint the drivers
with the rules to be followed while using the roads.
(j) Publicity measures and awareness campaign of road safety is carried
out through DAVP, Doordarshan, All India Radio and newspapers and a
suitably designed system throughout the country for rigorous
inspection of motor vehicles and to remove the defects before they are
allowed to ply on roads is under contemplation; necessary amendments
in the Central Motor Vehicles Rules would be carried out prescribing
these tests which will replace the presently visual inspection of
vehicles which is in force.
(k) Insofar as post-accident medical response is concerned, it is stated
that the Ministry of Health and Family Welfare (MoHFW) has established
trauma centres in State Government hospitals to the extent possible
and during the 11th Plan the MoHFW had identified 140 government
hospitals in 16 States along the golden quadrilateral highway for
establishing trauma care facilities. The scheme is proposed to be
extended to another 85 government hospitals during the 12th Plan and
such facilities will be located near or on the national highways.
(l) A pilot project has been introduced along a stretch of NH-8 between
Delhi and Jaipur wherein 11 ambulances had been deployed at intervals
of 20 kilometers and the government has undertaken to bear the
treatment cost upto Rs. 30,000/- for the initial 48 hours. A National
Highway Accident Relief Service Scheme (NHARSS) has also been launched
to provide immediate eviction of injured victims to the nearest
medical aid centre and adequate number of cranes of different
capacities, ambulances and life-support ambulances to carry the
victims to 140 identified hospitals had been provided in different
States. 24 interceptors have been sanctioned to the States and Union
Territories to detect violations under the Act. In the counter
affidavit filed by the first respondent it is also stated that
following the decision of the Supreme Court in Pt. Parmanand Katara
vs. Union of India[1] instructions have been issued by the Ministry to
all the State Governments emphasising the need for providing medical
aid to road accident victims without waiting for the police for
completion of the legal formalities. Reference is made to a circular
dated 19.02.2004 issued to all State Governments regarding the
necessity of building confidence in the public for helping road
accident victims. In the said circular it is emphasized that the
members of the public, who render voluntary help to persons injured in
accidents, should not be unnecessarily questioned and detained in the
police stations and further that they should not be harassed or forced
to give their particulars.
14. There are several other significant aspects connected with the
present matter that have been highlighted by the Ministry (MoRTH). The
National Road Safety and Traffic Management Board Bill 2010 for creation of
a National Road Safety and Traffic Management Board (NRSTMB) has been
emphasised. The said Board is intended to act as a lead agency to oversee
road safety and traffic management activities in the country. The
functions of the Board as stipulated in the Bill include specification of
standards for construction and maintenance of national highways; specifying
the safety standards for mechanically propelled vehicles; to maintain a
comprehensive database on road safety; to issue guidelines for training and
testing of drivers; establishment and upgradation of trauma centres in
consultation with the Directorate General of Health Services. At present,
the Bill is pending before the Lok Sabha though the Parliamentary Standing
Committee has recommended scrapping of the same on the ground that the
Board is merely a recommendatory body and is a further addition to the
several other existing bodies acting in an advisory and recommendatory
capacity.
15. The proposed substitution of Section 163A and the Second Schedule to
the Act which has been approved by the Rajya Sabha on 8.5.2012 has also
been highlighted in the affidavit as a move to ensure payment of
higher/substantial compensation to victims of road accidents.
The Bill amends sub-section (3) of Section 163A permitting the
Government to revise the amount or multiplier specified in the Second
Schedule every three years, based on the cost of living and rise in price
index. The corresponding sub-section in the principal Act permitted the
Government to do so “from time to time”.
The Bill replaces the Second Schedule to lay down a new scheme for
calculating the compensation amount payable to a victim or his/her kin.
The formula for working out compensation is as follows:
a) The proven annual income of the victim is to be worked out.
b) Appropriate multiplier (higher of the multiplier based on the
age of the victim and the age of the surviving/dependent
parents/spouse/children) to be applied.
c) Multiply the proven annual income by the appropriate multiplier
to arrive at compensation amount, subject to following namely:-
i) The amount of compensation payable for Permanent Total
Disablement as defined in Schedule I of the Workmen’s
Compensation Act, 1923 (8 of 1923) shall be determined by
application of appropriate multiplier to proved income,
subject to maximum of Rs.10 lakhs.
(ii) The amount of compensation so arrived shall be reduced by
1/3rd in respect of fatal accidents (reduction of 1/3rd
represents living expenses for deceased person, had he been
alive).
The maximum annual income for calculation of compensation is proposed to be
fixed at Rs.1 lakh as against the present amount of Rs.40,000/-. The
minimum compensation amount payable is increased to Rs.1 lakh from the
erstwhile Rs.50,000/-. In case of death of non-earning person, the
Schedule fixes the compensation at Rs.1 lakh for children upto 5 years of
age, and at Rs.1.5 lakh for persons more than 5 years of age. Where such a
person is grievously injured in an accident, the maximum compensation that
may be awarded is Rs.50,000/-. In case of non-grievous injuries, the non-
earning person may be awarded a maximum compensation of Rs.20,000/-. The
Bill also seeks to enhance the general damages payable in case of death and
disability.
16. Finally, in its counter affidavit, the Ministry (MoRTH) has stated
that the enforcement of the core provisions of the Act comes within the
purview of the States/Union Territories and though the first respondent has
been impressing upon all States/Union Territories for strict enforcement of
the provisions of the Act by issuing advisories from time to time,
eventually, it is upto the States to respond appropriately in the matter.
17. The narration above indicates the enormity of the problem; the issues
connected therewith; the suggestions made in different quarters for
resolution and the attempts to provide a solution. The mosaic of facts,
information and suggestions have been laid only to serve as a basis to
undertake the exercise imminently necessary to resolve the issue, to the
extent possible, so far as the present is concerned and to visualise what
could be the requirements of the future. We wish to make it clear that the
exercise attempted cannot be considered to be either infallible or to be a
one time attempt at a permanent solution. Different facets of the issue
with new complexities are bound to recur from time to time requiring
renewed attempts at resolution. It is keeping in mind the above features
that the course that we intend to charter, as laid out in the paragraphs
hereinafter, has been visualized and conceptualized.
18. The total network of roads in India is approximately 47 lakhs
kilometers which is possibly the second largest network in the world
after the U.S.A. While Express Highways count for only 200 kilometers
in length, National Highways measure 70,934 kilometers; State Highways
1,63,896 kilometers; other PWD Roads 10,05,327 kilometers and rural
and other roads 27,49,805 kilometers. The statistics mentioned below
would indicate the relative position with regard to the extent of road
network; the vehicular population and the number of deaths that had
occurred in the past years in road accidents in India and other
countries like U.S.A., U.K., China etc. While the statistics
available in respect of the USA may reflect a higher rate of accidents
though a lower number of deaths (possibly due to more advanced after
trauma facilities) the figures in respect of the U.K. and China
highlights the magnitude of the problem in so far as India is
concerned. In this regard it would require a specific mention that
while the death rate in China, which had stood at par with India at a
certain point of time, has shown a significant downward trend in case
of India the said figures has shown a disturbing increase.
A - Data on RTAs
|Country |Road |Number of |Number of |Deaths |Seri|
| |network |vehicles |Accidents | |ous |
| |(km) | | | |inju|
| | | | | |ries|
|India |46,89,842|11,49,53,000|4,30,654 |1,26,896 |4,66|
|Source: | | | | |,600|
|“Accidental | | | | | |
|Deaths & | | | | | |
|Suicides in | | | | | |
|India, 2010”, | | | | | |
|National Crime | | | | | |
|Records Bureau. | | | | | |
|Year: 2009 | | | | | |
|USA |65,86,610|25,41,66,000|1,08,00,00|33,808 |22,1|
|Source: | | |0 | |7,00|
|US Census Bureau| | | | |0 |
|Year: 2009 | | | | | |
|UK |3,94,428 |3,42,00,000 |1,64,000 |2,222 |2,20|
|Source: | | | | |,000|
|Department for | | | | | |
|Transport | | | | | |
|Year: 2009 | | | | | |
|China |41,06,387|20,70,61,286|-- |70,134 |-- |
|Source: | | | | | |
|“Global Status | | | | | |
|Report on road | | | | | |
|safety, 2013”, | | | | | |
| | | | | | |
|WHO. | | | | | |
|Year: 2010 | | | | | |
|Brazil |15,80,964|6,48,17,974 |-- |37,594 |-- |
|Source: | | | | | |
|“Global Status | | | | | |
|Report on road | | | | | |
|safety, 2013”, | | | | | |
|WHO. | | | | | |
|Year: 2010 | | | | | |
B – Data of relative figures in respect of China & India2
Number of Road Accidents
|Year |China |India |
|2004 |5,17,889 |4,29,910 |
|2005 |4,50,254 |4,39,255 |
|2006 |3,78,781 |4,60,920 |
|2007 |3,27,209 |4,79,216 |
|2008 |2,65,204 |4,84,704 |
|2009 |2,38,351 |4,86,384 |
Number of Persons Killed
|Year |China |India |
|2004 |1,07,077 |92,618 |
|2005 |98,738 |94,968 |
|2006 |89,455 |1,05,749 |
|2007 |81,649 |1,14,444 |
|2008 |73,484 |1,19,860 |
|2009 |67,759 |1,25,660 |
19. The facts mentioned above would leave no room for doubt that Indian
roads have proved to be giant killers demanding immediate attention and
remedial action. Such attention and necessary intervention, in the first
instance, is required to be made by the concerned governmental agencies.
While there is no reason for any skepticism over the abundant concern shown
by all concerned to the issues highlighted and also the attempted solutions
both in the field of law enforcement as well as amendments in the law,
besides limited experiments in providing better after trauma care, for
reasons that need not detain the court, the results so far have not been
very encouraging. The accident and casualty graphs continue to run on an
even keel over the last several years.
20. An accident is an incident that happens unexpectedly and
unintentionally. It is occasioned either by human failure or human
negligence. Viewed from the above perspective and also thorough hindsight
every road accident is an avoidable happening. The history of humankind
has been one of conquests over the inevitable. The resignation to fate has
never been the accepted philosophy of human life. Challenges have to be
met to make human life more meaningful. This is how the constitutional
philosophy behind Article 21 has been evolved by the Indian courts over a
long period of time. It is this process of development and the absence of
significant and meaningful results from the governmental action till date
that impels us to delve into the realms of the issues highlighted by Dr.
Rajaseekaran in the present writ petition under Article 32 of the
Constitution.
21. Having considered all the relevant facts and also the suggestions
that have come from the different quarters it appears to us that the four-
dimensional approach that the Government had earlier attempted by setting
up four different working groups to go into the four issues of road safety,
namely, enforcement, engineering, education and emergency care would be the
best manner to approach the issues arising. We, therefore, intend to adopt
the same in the exercise proposed to be undertaken.
Enforcement
22. Enforcement of the existing laws, regulations and norms having a
bearing on road safety can be conveniently sub-divided into different
categories like-
(i) licensing;
(ii) certification of fitness of vehicles;
(iii) limits of use of vehicles i.e. passenger carrying
capacity, weight carrying capacity etc.;
(iv) use of road safety devices;
v) adherence to norms including user of roads, and;
(vi) deployment of adequate manpower for enforcement of the existing
provisions of law.
23. The provisions of the law i.e. Motor Vehicles Act, 1988 governing the
aforesaid features of the matter can now be taken note of.
A. Licensing
24. (I) Section 3 of the Motor Vehicles Act, 1988 states that no person
shall drive a motor vehicle in a public place without holding a valid
driving license. As per the mandate of Section 6, a person cannot hold more
than one such license. Further, Section 4 sets the age limits for driving
of motor vehicles: 18 years for cars, 16 years for motorcycles, and 20
years for transport vehicles. Section 5 prohibits the owner to permit any
person to drive the vehicle without satisfying Sections 3 & 4. If an owner
permits any person to drive the vehicle without a driving licence, the
owner is liable for imprisonment upto 3 months or fine upto Rs. 1,000 or
both, under Section 180.
(II) Under Section 19, the licensing authority may disqualify a
person from holding a driving license for certain reasons, such as if the
person (i) is a habitual criminal or habitual drunkard, (ii) is a habitual
addict to any narcotic drug or psychotropic substance within the meaning of
the NDPS Act, 1985, (iii) is using or has used a motor vehicle in the
commission of a cognizable offence, (iv) has by his previous conduct as
driver of a motor vehicle shown that his driving is likely to be attended
with danger to the public, (v) has committed any such act which is likely
to cause nuisance or danger to the public, etc.
(III) The Court may also disqualify a person from holding a driving
license, apart from imposing any other punishment. In the following cases,
disqualification by the Court is mandatory under Section 20(2):
- not stopping the vehicle when required to do so by any Police Officer
(not below the rank of Police Sub-Inspector in uniform) if the vehicle
is involved in a road accident (Section 132)
- not shifting the victim of the accident in which his or her vehicle is
involved to the nearest hospital/ medical practitioner (Section 134)
- not giving, on demand by a Police Officer, any information required by
him (Section 134)
- not reporting the occurrence of accident to insurer (Section 134)
- driving by a drunken person or by a person under the influence of
drugs (Section 185)
- driving dangerously (Section 184)
- racing and trials of speed (Section 189)
- using a vehicle without registration (Section 192)
B. Vehicular Fitness
25. (I) Under Section 39, a person cannot drive a motor vehicle or
cause or permit his vehicle to be driven without proper registration and
display of the registration mark. If a vehicle is not in a fit condition to
be used on the public road or is being used for hire without valid permit,
the appropriate authority under Section 53 can suspend the registration
certificate.
(II) Using a vehicle without registration can result in fine, the
minimum amount of which is Rs. 2,000 and maximum is Rs. 5,000, under
Section 192. For a subsequent offence, the maximum amount of fine may
extend to Rs. 10,000, subject to a minimum of Rs. 5,000. The punishment is
not applicable for vehicles used in an emergency for the conveyance of
persons suffering from sickness or injuries or for the transportation of
food or material to relieve distress or of medical supplies for a like
purpose, per sub-Section (2).
(III) A vehicle cannot be used on the road without proper insurance
certificate, as under Section 146. The owner is responsible for obtaining
insurance. Driving an uninsured vehicle can result in punishment in
imprisonment upto 3 months or fine upto Rs. 1000/- or both, under Section
196.
(IV) In cases of vehicles involved in road accidents, the driver or
owner must report such involvement to the concerned police officer. Failure
to do so would attract punishment under Section 187, viz. imprisonment upto
3 months or fine upto Rs. 500, or both (in addition to the punishment for
the accident). For the subsequent offence under this section, the
imprisonment can be upto 6 months and fine amount upto Rs. 1,000. Moreover,
such a vehicle has to be inspected by the authorized officer of the Motor
Vehicles Department (Section 136).
(V) Chapter V of the Central Motor Vehicles Rules, 1989 contains
exhaustive provisions on the construction, maintenance and equipment of
motor vehicles, dealing the dimensions of the vehicle, tyres, brakes,
steering gears, safety glass, windscreen wipers, emission standards, noise
reduction measures, and speed governors. The Rules also provide for the
installation of devices such as helmets, safety belts, padded dashboards
etc. for the safety of drivers, passengers and road users. Violation of the
standards prescribed in relation to road safety, control of noise and air
pollution is fine amount upto Rs.1,000/- for the first offence and Rs.
2,000/- for the subsequent offence, under Section 190 of the MV Act.
C. Use of Roads
26. (I) The MV Act contains several provisions regulating the use of
roads by motor vehicles.
(II) Section 119 mandates every driver to drive the vehicle in
conformity with traffic signs and prescribed driving regulations and to
comply with all the directions given to him by any Police Officer engaged
in the regulation of traffic. Under Section 121, the driver must signal his
intention to stop or take a left or right turn.
(III) Leaving a vehicle at rest on any public place in such a way as
to cause or likely to cause danger, obstruction or undue inconvenience to
other road users is an offence under Section 122. Such vehicles may be
towed away by Police and the owner may be charged for towing in addition to
the penalty for offence. A vehicle may also be towed away by the police (in
uniform) if it is left attended in a public place for more than 10 hours,
or parked at a ‘No Parking Zone’, or parked in a manner that creates a
traffic hazard (Section 127).
(IV) Carrying more than one pillion rider on a two-wheeler is an
offence under Section 128. Wearing a helmet of ISI standard, while riding a
motor cycle in a public place, is mandatory under Section 129.
(V) Under Section 183, if a driver of a motor vehicle contravenes
the speed limit, he/she shall be punishable with fine upto Rs. 400/- for
the first offence and Rs. 500/- for the subsequent offence, and if the
owner causes the driver to contravene the speed limit, he/she shall be
punishable with fine upto Rs. 300/- for the first offence and Rs. 500/- for
subsequent offence. Under Section 184, whoever drives a motor vehicle at a
speed or in a manner which is dangerous to the public, having regard to all
the circumstances of the case including nature, condition and use of the
place where the vehicle is driven and the amount of traffic which actually
is at the time or which might reasonably be expected to be in the place,
shall be punishable for the first offence with imprisonment for a term
which may extend to six months, or with fine which may extend to one
thousand rupees. In case of repeated offence committed within three years
of the first offence, he may be punished with imprisonment for a term which
may extend to two years or with fine which may extend to two thousand
rupees or with both. The driver can be arrested on the spot. Taking part in
a race or trial of speed of any kind without the Government’s written
permission is punishable under Section 189, with imprisonment for a term
which may extend to one month or with a fine upto Rs 500 or with both.
(VI) Under Section 185, punishment for drunken driving is
imprisonment upto 2 years or fine upto Rs. 3,000/- or both, and the driver
can be arrested on the spot. Further, Section 186 makes a person who is
mentally or physically unfit to drive, punishable for the first offence of
driving in such a situation with fine upto Rs. 200/- and Rs. 500/- for
subsequent offence.
(VII) Driving a vehicle exceeding permissible weight can result in a
punishment of Rs. 2,000/- and an additional amount of Rs. 1,000/- per ton
of excess load together with the liability to pay charges of off-loading
the excess load, per Section 194.
(VIII) Using vehicle in contravention of permit condition can
result in fine upto Rs. 5,000/- but not less than Rs. 2,000/- for the first
offence and imprisonment upto 1 year but not less than 3 months or with
fine amount upto Rs. 10,000/- but not less than Rs. 5,000/- or both for the
subsequent offence (Section 192(a)).
27. While improvements in different spheres of law are imminent with
passage of time, any change of law has to be preceded by serious debate and
consideration of a wide variety of factors all of which takes time. The
legislative procedure is also time consuming. In fact several amendments
in the Motor Vehicles Act as indicated in the earlier part of this order
are under consideration. While such changes or amendments can be brought
in only upon completion of the necessary exercise, the enforcement of the
existing laws would stand on an entirely different footing. Strict and
faithful enforcement of all existing laws and norms must be insisted upon
not only as an absolute principle of law but also for the huge beneficial
effects thereof. As noted earlier, out of the total road network in the
country which is about 47 lakhs kilometers in length, national highways
account for only 70,934 kilometers only. It is over these national
highways that the executive power of the Union extends whereas in respect
of the State highways and other State roads the Executive power of the
State runs. That apart, roads, traffic thereon and vehicles other than
those mechanically driven are covered by relevant entries in List II of the
Seventh Schedule giving jurisdiction to the States both in matters of
legislation and exercise of executive power. None of the States are
parties to the present writ petition. Though we are inclined to accept that
directions to the States to enforce the existing laws can be issued even in
their absence, we cannot help observing that the matter cannot be allowed
to rest merely by issuance of directions by this Court. Observance and
implementation of the directions to be issued by this Court in exercise of
power under Article 142 of the Constitution would require a continuing
scrutiny and we intend to monitor such implementation and to make the
States accountable for any inaction or lapse in this regard. We,
therefore, implead all the States as party respondents and direct the
Registry to issue notice to them. For the present we direct the Government
of each State to effectively implement and enforce all the provisions of
the Act in respect of which the States have the authority and obligation to
so act under the Constitution in addition to the tasks specifically alluded
to in the subsequent paragraphs of the present order.
Engineering
28. In so far as road engineering is concerned, the concerned departments
in the Central Government as well as the State Governments must make road
safety an integral part of road design at the planning stage and conduct
regular road safety audit of selected stretches of expressways, national
highways, state highways and other state roads to identify what can be
reasonably termed as ‘black spots’ i.e. problem spots where a large number
of accidents occur. Regular maintenance of all highways and roads both by
the Central and the State Governments, in order to make the same traffic
worthy, is the minimum that the citizens of this country can expect and are
entitled to. We hardly need to emphasis that it is the duty of the Central
and the State Governments to ensure the availability of safe roads worthy
of traffic, though we must hasten to add that our observations in this
regard must necessarily be understood in the context of the resources
available to the Central and the State Governments. We accordingly direct
the respective Governments to act accordingly.
Education
29. The importance of education on road safety cannot be gainsaid. Such
consciousness needs to be developed amongst all citizens and should be
inculcated from a young age. The importance of informing and educating the
citizens of the virtues of road safety lies in the fact that, in the last
resort, it is such realization alone that can lead to better and safer use
of roads and vehicles. It is heartening to note that serious consideration
on this aspect of road safety has been expended by the Union Government
details of which measure have been noted earlier. We direct the Union
Government to continue to expend its efforts and all such measures shall
also be implemented by the State Governments.
Emergency
30. In so far as emergency is concerned there is perhaps no denial of the
fact that many deaths and loss of limbs and serious disfiguration of
victims can be saved by timely medical attention. Lack of adequate number
of good samaritans; squabbles between police stations and administrative
authorities over jurisdiction; lack of quick response in removing the
victims to hospitals and centres of medical care due to lack of necessary
infrastructure like ambulances; absence of adequate and well spread out
number of hospitals and medical centres; the poor condition and lack of
adequate infrastructure in government run hospitals and health centres and
the prohibitive costs of health care facilities in the more advanced
centres of medical care besides insistence of large deposit of money by
such advanced health care centres in the private sectors are some of the
problems that have seriously plagued post trauma/accident care in the
country. As already noted, limited attempts have been made on experimental
basis and that too on national highways alone to provide better amenities
and also to take care of the fund requirements for the first 48 hours
following the accident. The experiment needs to be extended by the Central
Government to more stretches of the National Highways besides introduction
and implementation of such measures by the States in the roads under their
control and jurisdiction.
31. 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. In so far as suitable amendments to the laws are
concerned, this Court can only hope and trust that all such changes or
amendments which are presently under legislative consideration would be
expedited and measures as may be considered necessary by legislature in its
collective wisdom will be brought in the statute book in due course. At
the same time, what has been admitted to be necessary and, therefore, has
been initiated by the Central Government in so far as engineering and road
education is concerned shall be implemented and directions to so act may be
construed to have been issued by this Court by the present order.
Similarly, in so far as emergency care is concerned, what has been
initiated by the Central Government, as stated in its affidavit, shall be
suitably implemented and extended subject to the limits of its financial
ability. The States also shall act accordingly and initiate similar
measures if required, in a phased manner.
32. We are aware that the journey that has been undertaken would be long
and arduous. It is difficult to visualise when the same would end, if
at all. To ensure the success of the process undertaken, constant
supervision of this Court of the measures undertaken by the Central
Government and the State Governments and the extent of affirmative
action on part of the Union and the States will have to be measured and
monitored by the Court from time to time. Keeping in mind that the time
available to this Court is limited we deem it proper to constitute a
Committee to undertake the process of monitoring on behalf of the Court.
The Committee will have the following composition and shall function in
the manner indicated below:
Composition of Committee
|Sl.No. |Name | |
|1. |Hon’ble Mr. Justice K.S. Radhakrishnan|Chairperson |
| |Judge, Supreme Court of India | |
| |(Effective from 15th May, 2014) | |
|2. |Mr. S. Sundar |Member |
| |Distinguished Fellow, TERI | |
| |Former Secretary, Ministry of Surface | |
| |Transport, Government of India | |
|3. |Dr. (Mrs.) Nishi Mittal |Member |
| |Ex. Chief Scientist, CRRI, | |
| |Formerly HoD, Traffic Engineering and | |
| |Safety (TES), | |
| |Central Road Research Institute | |
33. (I) The composition of the above Committee will be notified by
the Ministry of Road Transport and Highways, Government of India
forthwith.
(II) The Committee will have its office in the national capital and
requisite infrastructure including manpower will be provided by the
Central Government.
(III) The remuneration and perquisites of the Chairman of the
Committee and its members will be fixed by the Union Government in
consultation with the individual concerned and in accordance with
prevailing norms.
IV) All State Governments as well as different
Ministries/Departments/Wings of the Central Government who are
currently looking after the multi-dimensional issues pertaining
to road safety will submit their first report to the Committee
within three months from today indicating the state of
implementation and enforcement of all laws pertaining to (i)
licensing; (ii) certification of fitness of vehicles; (iii)
limits of use of vehicles i.e. passenger carrying capacity,
weight carrying capacity etc.; (iv) use of road safety devices;
(v) adherence to norms including user of roads, and (vi)
deployment of adequate manpower for enforcement of the existing
provisions of law.
V) The Union Government as well as the State Government shall also
indicate their views on the necessity of further change in the
law, if any.
VI) The Union Government as well as the Government of the States
shall also offer their views on the suggestions/recommendations
of the different bodies/persons noticed and mentioned in the
present order which are presently not under implementation.
VII) The Committee shall undertake a detailed scrutiny and
examination of the Report(s) that may be submitted and the views
of the Central and State Governments with regard to necessity of
further legislation or changes in the existing laws.
VIII) The Committee will submit its report to this Court within three
months after receipt of report from the Union and the State
Governments indicating and expressing its views on each of the
matters referred to in the present order including the
deficiencies and the defaults on the part of any of the
stakeholders, as may be found.
34. The matter be posted for further consideration before this Court on
the expiry of six months from today along with the report (s) as may be
submitted pursuant to the present order.
35. A copy of this order be furnished to the petitioner and each of the
Respondents as well as to the Chief Secretaries of all the States/Union
Territories.
...…………………………CJI.
[P. SATHASIVAM]
.........………………………J.
[RANJAN GOGOI]
…..........……………………J.
[N.V. RAMANA]
NEW DELHI,
APRIL 22, 2014.
-----------------------
[1] (1989) 4 SCC 286
2 Source: “Statistical Year Book of India – 2014” published by the
Ministry of Statistics and Programme Implementation.
-----------------------
57
The petitioner is a leading orthopaedic surgeon of the country and
the Chairman and Head of the Department of Orthopaedic Surgery in the Ganga
Hospital at Coimbatore. He was/is also the President of the Indian
Orthopaedic Association, the largest professional body of orthopaedic
surgeons in the country. In the course of his professional duties spanning
over several decades the petitioner, while rendering professional service
to victims of road accidents, has come to realise that the large number of
accidents that occur every day on the Indian roads, causing loss of human
lives besides loss of limbs and other injuries resulting in human
tragedies, are wholly avoidable. In the light of the experience gained and
propelled by a desire to render service beyond the call of duty, the
petitioner has filed this writ petition under Article 32 of the
Constitution seeking the Court’s intervention, primarily, in the matter of
enforcement of the prevailing laws and also seeking directions for
enactment of what the petitioner considers to be more appropriate
legislative measures and for more affirmative administrative action. The
petitioner also seeks directions from the Court for upliftment of the
existing infrastructure and facilities with regard to post-accident care
and management to minimize loss of life and physical injuries to victims of
road accidents.
2014 ( April.Part ) judis.nic.in/supremecourt/filename=41438
P SATHASIVAM, RANJAN GOGOI, N.V. RAMANA
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 295 OF 2012
S. RAJASEEKARAN ... PETITIONER(S)
VERSUS
UNION OF INDIA & ORS. ... RESPONDENT (S)
J U D G M E N T
RANJAN GOGOI, J.
1. The petitioner is a leading orthopaedic surgeon of the country and
the Chairman and Head of the Department of Orthopaedic Surgery in the Ganga
Hospital at Coimbatore. He was/is also the President of the Indian
Orthopaedic Association, the largest professional body of orthopaedic
surgeons in the country. In the course of his professional duties spanning
over several decades the petitioner, while rendering professional service
to victims of road accidents, has come to realise that the large number of
accidents that occur every day on the Indian roads, causing loss of human
lives besides loss of limbs and other injuries resulting in human
tragedies, are wholly avoidable. In the light of the experience gained and
propelled by a desire to render service beyond the call of duty, the
petitioner has filed this writ petition under Article 32 of the
Constitution seeking the Court’s intervention, primarily, in the matter of
enforcement of the prevailing laws and also seeking directions for
enactment of what the petitioner considers to be more appropriate
legislative measures and for more affirmative administrative action. The
petitioner also seeks directions from the Court for upliftment of the
existing infrastructure and facilities with regard to post-accident care
and management to minimize loss of life and physical injuries to victims of
road accidents.
2. In the context of the aforesaid effort, the petitioner has set out
detailed statistics published by the Ministry of Road Transport and
Highways (MoRTH) in the volume “Road Accidents in India 2010” highlighting
the extent of increase of road accidents and fatal cases between 1970-2010.
In the aforesaid publication in which the relevant figures are pegged to
the year 2010 it is reported that road traffic accidents in the said year
i.e. 2010 numbered nearly 5,00,000 resulting in approximately 1,30,000
deaths and serious injuries including amputation of limbs to over 5,00,000
persons. One serious road accident in the country occurs every minute; and
one person dies in a road traffic accident every 4 minutes. Road traffic
accidents, therefore, have the potential of being one of the largest
challenges to orderly human existence necessitating immediate and urgent
intervention. Not only the existing laws, which by themselves are
inadequate, are not being implemented in the right earnest; the need for
changes in such laws and upgradation thereof, though admitted, are yet to
see the light of the day. Besides, victims of road traffic accidents die
in large numbers due to lack of timely and proper medical attention which,
inter alia, is caused by avoidable disputes with regard to jurisdiction of
the administrative authorities including the police who are to deal with
the matter instead of rendering immediate medical aid to the victim.
Failure to provide immediate medical attention resulting in death and
irreversible injuries is also due to inadequate facilities for early
removal of the victims of road accident to the nearest hospitals/medical
centres. Inadequate number of ambulances and other suitable modes of
transport to transport the victims of road accidents; the absence of trauma
centres in different hospitals, and lack of even basic health care
facilities are additional features that contribute to the unimpeded growth
of the imminent menace to human life. Such unabated growth, it may be
mentioned, is reflected in the figures beyond 2010 also. In fact, the
corresponding figures of the year 2012 available in “Accidental Deaths and
Suicides in 2012” a publication of the National Crime Records Bureau show a
uniform graph for all the relevant figures i.e. number of road accidents;
fatal cases as well as serious injury cases.
3. The petitioner has not visualized the magnitude of the problem that
he seeks to highlight on the basis of his individual perceptions. He seeks
to base his contentions on reports submitted by the Working Groups
constituted by the MoRTH to survey the different facets of the problem as
well as research and authoritative articles published on the subject by
persons of eminence. It will, therefore, be necessary to briefly outline
what has been dealt with and indicated in the said reports and
publications.
4. At the outset, there are the reports of four Working Groups set up by
the first respondent to submit recommendations and suggestions on short
term and long term measures to curb road accidents in the country. The
said four Working Groups were required to go into four ‘Es’ of road safety,
namely, Engineering, Enforcement, Education and Emergency Care.
5. According to the Working Group on Enforcement, as on date, India has
the distinction of having one of the highest number of accidents and
fatalities on roads. After a detailed study the Working Group has
recommended, in the main, the following measures for road safety :
(a) Amendment of Motor Vehicles Act to increase fines and to provide
for revision of fines every 3 years based on the Consumer Price
Index.
(b) Overloading of commercial vehicles should be prosecuted under
the Damage to Public Property Act. Liability should be imposed
on the transporter, consignor and consignee.
(c) Use of Road Safety devices – there should be no exemption for
wearing helmets (such as the exemptions in favour of women in
some States). Seatbelts should be compulsory for driver and
front-seat passenger. On national highways, seatbelts should be
compulsory for back-seat passengers, too.
(d) In case of drunken driving (Section 20/185, MV Act), the norm
should be suspension of the driving license and should be
strictly enforced by traffic police and courts.
(e) Traffic Violations Database should be maintained to record data
of violating vehicles, drivers and offences committed. This
would help identify habitual offenders who could be awarded
enhanced punishment.
(f) Checking of overcrowded passenger vehicles, and cancellation of
permit.
(g) Improvement of road engineering: Concerned departments must
inspect roads where frequent accidents occur.
(h) Digitization of driving licenses in the country, so that
defaulters cannot obtain other licenses (upon cancellation or
suspension of their license).
(i) Issue of Fitness certificate for commercial vehicles should be
based on stringent inspection.
6. The Working Group on Emergency Care took note of the fact that a
large number of potentially salvageable patients die needlessly due to
delay in retrieval and inadequate or ineffective treatment. In its report
the Working Group had enumerated the following problems in accident and
emergency care delivery in India :
(i) The general public does not possess basic first aid skills.
(ii) There is no standardized toll free access number to call
emergency medical help.
(iii) Non availability of appropriate and safe transport for injured
patient in the form of road ambulances, air ambulances etc.
(iv) The ambulances are inappropriately/ inadequately equipped.
(v) There is lack of awareness regarding Hon’ble Supreme Court of
India’s directives regarding the right to emergency care for RTA
victims and the legal protection available to good Samaritans
who offer help to a victim of a road accident.
(vi) There is no provision to ensure adequate compensation to an RTA
victim in case the accident causing vehicle does not have a
third party insurance.
(vii) Majority of the drivers do not have a personal mediclaim policy
to cater to their emergency medical needs in case of an
accident.
7. Insofar as the report of the Working Group on Engineering is
concerned it was observed that the road network in the country is
historically developed with a view to providing accessibility rather than
mobility. In the said report it was also noted that the available funding
for maintenance and repairs of National Highways Network is only 35-40% of
the estimated fund requirement.
8. Insofar as road safety education is concerned the following extract
from the report of the Working Group on Road Safety Education would
highlight the dimensions of the issue :
“On an average, 20 percent of all people killed in road accidents in
developing countries are under the age of fifteen. This is twice as
high as in the developed world. In India, there is one road accident
every minute, and one fatal accident every fourth minute. There are
as many as thirty five accidents per thousand vehicles, and the
drivers involved in road crashes are in the age group 20-40 years.
Two wheelers and cars contribute to 50 percent of the total accidents.
Road crashes cost approximately one to three percent of a country’s
GDP. Other than road engineering issues, most of the accidents are
caused by the drivers fault. While some experts say it is around 50
percent, the MoRTH said that it was around 80 percent. Whatever be
the exact figure, we do need to focus on education and enforcement for
improving driver performance.”
“Road Safety Education should not remain a matter of words. Students
must be educated in a way that brings them alive to the issues of road
safety.
The report further states that, “Enforcement has a key role in
encouraging improved road users behavior. The general deterrence
provided by enforcement authorities will promote public perception
that “compliance everywhere all the time” is the best way of avoiding
penalties and improving safety. Often fear of the stick works better
than the stick itself.”
9. A detailed reference has been made by the petitioner to the report
submitted by Shri S. Sundar [Former Secretary in the Ministry of Surface
Transport and Distinguished Fellow of The Energy and Resources Institute
(TERI)] under whom a Committee was constituted in the year 2005 to
deliberate and make recommendations for creation of a dedicated body on
road safety and traffic management. The Committee was also requested to
draft the National Road Safety Policy for consideration of the Government.
While submitting its report in February, 2007 the Committee, inter alia,
recommended a draft National Road Safety Policy which was approved by the
Cabinet in its meeting held on 15.3.2010. The said Policy outlines the
initiatives that are to be taken by the Government at all levels to improve
road safety in the country. The major initiatives under the Policy are :
(a) To promote awareness about road safety issues.
(b) To ensure safer road infrastructure by way of designing safer
road, encouraging application of Intelligent Transport System
etc.
(c) To ensure fitment of safety features at the stage of designing,
manufacture, usage, operation and maintenance.
(d) To strengthen the system of driving licensing and training to
improve the competence of drivers.
(e) To take measures to ensure safety of vulnerable road users.
(f) To take appropriate measures for enforcement of safety laws,
(g) To ensure medical attention for road accident victims.
(h) To encourage human resource development and R&D for road safety.
(i) To strengthen the enabling legal, institutional and financial
environment for promoting road safety culture in the Country.
10. In an article authored by Justice A.R. Lakshmanan, erstwhile Chairman
of the Law Commission, which appeared in the newspaper “The Hindu” on 10th
July, 2011 a number of suggestions have been offered for road safety. The
most significant of the aforesaid suggestions and relied upon by the
petitioner may be usefully extracted below.
“a) For ensuring the safer use of roads it has been suggested that
all State Governments notify rules in their respective states
for the following:
. The removal and the safe custody of the vehicles including
their loads which have broken down or which have been left
standing or have been abandoned on a highway;
. the determination, maintenance and management of parking
places for the use of vehicles and animals and the fees, if
any, which may be charged for their use;
. prohibiting the use of footpaths or pavements by vehicles
or animals;
. prohibiting or restricting the use of audible signals at
certain times or in certain places;
. regulating the loading of vehicles and in particular,
limiting the loads carried in relation to the size and
nature of the tyres fitted;
. a right of way for ambulances and fire brigade vehicles;
. the control of animals likely to frighten other animals or
pedestrians;
. the control of children on highways;
. prohibiting the riding by more than two persons at the
same time on cycles other than cycles designed for the
purpose;
. prohibiting the riding of more than two cycles abreast;
. limiting the age of drivers of vehicles;
. regulating the driving of vehicles of vehicles and animals
at night; and
. regulating the use of highways by pedestrians.”
b) For ensuring safer public vehicles it has been suggested that
the State Governments of all States notify the following rules.
a) The width, height and length of vehicles;
b) The size, nature and condition of wheels and tyres;
c) Brakes;
d) Lamps and reflectors;
e) Warning devices;
f) The inspection of vehicles by prescribed authorities;
g) Regulating the particulars exhibited on vehicles and the
manner in which such particulars shall be exhibited.
c) It has been suggested that the State Governments notify rules
for regulating the use of public vehicles in the following
manner:
. the documents, plates and marks to be carried by public
vehicles, the manner in which they are to be carried and
the language in which such documents is to be expressed;
. the badges and uniforms to be worn by drivers;
. the fees to be paid for permits, driving licences,
duplicate copies of permits or driving licences, plates,
badges, and appeals preferred before statutory authorities;
. the limiting of the number of public vehicles or public
vehicles of any specified class or description, for which
permits may be granted in any specified area, or on any
specified route or routes;
. the fixing of maximum or minimum fares or freights;
. the maximum number of passengers or the maximum quantity
of goods that may be carried in a public vehicles;
. the conditions subject to which passengers, luggage or
goods may be carried in a public vehicle;
. the construction and fittings or and the equipment to be
carried by public vehicles, whether generally or in
specified areas or on specified routes; and
. the safe custody and disposal of property left behind in
public vehicles;
d) It has been suggested that the State Governments notify the
following Regulations for Traffic Personnel to enforce discipline
in regard to :
. Non-observance of traffic rules;
. Jumping the red light;
. Crossing the red light;
. Driving without valid licence;
. Driving under the influence of liquor/drugs;
. Driving while talking on the mobile;
. Driving without helmet;
. Overloading of passengers in autos. In shared auto-
rickshaws, the driver’s seat is often occupied by three
persons.
. An entire family (minimum four persons) riding a
scooter/motorcycle without realizing that this is a traffic
offence and such travel is at the risk of their lives;
. Haphazard parking of auto-rickshaws, vehicles and
government buses.
. Over-speeding, crossing the yellow line or violating
traffic rules by scooter/motorcycle;
. Violation of traffic signals on a one-way road or complete
violation of the traffic signal;
. “Jam-packed” or extremely crowded stage carriages;
. Confiscation of Vehicles fitted with LPG cylinders which
are meant for home kitchen, and arrest and prosecution the
owners/drivers of such vehicles;
. Installation of weigh bridges at all entry and exist
points to and from a city as well as toll collection
centres to keep overloading of vehicles under check;
. Round-the-clock mobile court/mobile policing of roads, not
limited to peak hours.
. Digging of roads by various public utility agencies, like
Telephone or Electricity Corporations, causing
inconvenience to road-users.
. Common traffic violations such as driving in the wrong
direction, breaching speed limits, and jumping traffic
lights.”
11. Apart from seeking appropriate directions in the light of the above
suggestions, the petitioner also seeks the constitution of a monitoring
agency to ensure that the said suggestions are notified by the State
Governments within a time frame.
12. Apart from the above suggestions the erstwhile Chairman of the Law
Commission had also suggested an amendment in the Seventh Schedule of the
Constitution to enable enactment of a central legislation with regard not
only to national highways but also in respect of roads and traffic thereon
in addition to vehicles other than mechanically propelled which as of today
falls under Entry 13 of the State List.
13. Taking into account the recommendations and suggestions contained in
the above reports of the Working Groups and the other publications and
views referred to, the petitioner has contended that in the larger interest
of the members of the public using the national highways, the State
highways and all other arterial roads that connect the different places and
centres of the country the suggestions offered by the petitioner would be
worthy of consideration for incorporation in the firm directions of this
Court under Article 142 pending the necessary enactment thereof by means of
appropriate legislation by the Union and the States wherever required. The
core of the said suggestions are as follows:
(a) Owing to the severity of the problem and the fragmented nature
of responsibility of the concerned Ministries/departments, the
PMO should have direct responsibility. There should be a central
coordinating body under the PM’s direct leadership with order
it and powers and definite targets.
(b) Directions to ensure:
(i) Liability of IRDA in case person is denied treatment
due to delay in sanction of insurance money.
(ii) Equal, if not higher, compensation to those persons
injured as is given to those who have died as a
result of the RTA.
(iii) All vehicles must have compulsory third-party
insurance. Currently, 22% vehicles are uninsured.
(iv) Liability for emergency expenditures of injured, so
that the injured/their family do not have to take
recourse to touts.
(c) Directions to R-2 for strict enforcement of traffic violations,
since every traffic violation is a potential RTA. R-2 should
maintain a minimum number of traffic policemen – as per the road
conditions and population – in a region. It must ensure that
such personnel are not diverted for any other reason (such as
‘bandobust’).
(d) Annual vehicular inspection should be made compulsory by R-1.
Such inspection should involve the manufacturers of the vehicles
also as they possess the requisite knowhow of the particular
vehicle. R-1 should be directed to ensure that roads are used
for transportation alone and not other purposes such as hawking,
religious processions, marriages etc.
(e) Road safety education should be incorporated in school curricula
and inculcated in every citizen.
(f) Directions to R-1 regarding licensing:
(i) There should be a cap on the number of licenses that can
be issued by the concerned official in one day, so that
every application for a license is strictly checked and
evaluated. Petitioner suggests a cap of four licenses
issuable per official per day.
(ii) Prescribe minimum education and qualification standards
for drivers.
(iii) Test the knowledge of safety standards, roads rules,
signboards, road markings etc. in addition to mere ability
to drive. Licenses ought not to be issued, as presently
done, on the basis of the criteria of ability to drive
alone.
(iv) Licensing should be based on biometrics to prevent
multiple licenses issued to one person.
(v) Computerized licensing to track offences and introduce a
point-based penalty system for offenders.
(vi) Bar coding of vehicles and licenses to link to the penalty
system, the annual fitness certificate of the vehicle, and
insurance forms for instant information.
(vii) Restrictions on the number of new vehicles registered and
number of vehicles a family/person can own, methods to
ensure road-worthiness of vehicle, periodic license renewal
etc.
13. The Respondent No. 1, namely Ministry of Road Transport & Highways
(MoRTH) has filed a detailed counter affidavit in the case highlighting the
steps undertaken by the Ministry as well as other associated
Ministries/Departments of the Union to combat the challenge posed by the
huge number of road accidents that occur throughout the length and breath
of the road network in the country. The contents of the said affidavit
will have to be noted in some detail to comprehend the steps that have been
undertaken and also the plans and schemes that have been evolved or are in
the process of being evolved as possible answers to the problem.
(a) According to Respondent No. 1, on 15.03.2010 the Government of India
has approved the National Road Safety Policy. The salient features of
the said Policy are:
“…… promoting awareness, establishing road safety information
data base, encouraging safer road infrastructure including
application of intelligent transport, enforcement of safety laws
etc.”
(b) The National Road Safety Council as contemplated under Section 215 of
the Motor Vehicles Act, 1988 (hereinafter for short ‘the Act’) has
been constituted by the Respondent No. 1 and advisories have been
issued to the States to set up Safety Councils at the State and
District levels. The functions of the National Council set up under
the Act are:
“The Councils and Committees referred to in this section shall
discharge such functions relating to the road safety programmes
as the Central Government or the State Government, as the case
may be, may, having regard to the objects of the Act, specify.”
(c) An amendment to the Act to provide enhanced penalties for different
offences has been passed by the Upper House on 8.5.2012 and the Bill
is presently pending before the Lok Sabha. So far as overloading of
vehicles, a major cause of road accidents, is concerned, according to
the Union, the enforcement of the law in this regard is the
responsibility of the State Governments. 27 States, according to
Respondent No. 1, have taken necessary action for enforcement of the
provisions of Section 114 of the Act. Similarly, enforcement of the
provisions contained in Section 129 of the Act regarding wearing of
helmets and Rule 125(1) of the Central Motor Vehicles Rules, 1989
(hereinafter for short ‘the Rules’) with regard to seat belts etc. is
the responsibility of the State Governments. According to the
respondent No. 1, in collaboration with NIC, a national register as
well as State registers have been created to act as a centralized
database for driving licenses and registration certificates.
Furthermore, it is stated that “out of 993 RTOs, 992 RTOs have been
connected with State registers/national register through VPNoBB/LL
connectivity and RTOs/DTOs data is being replicated at State
Register/National Register in Asynchronous Mode. The National and
State Registers are customized with portal VAHAN & SARATHI software
for compiling/ digitizing the data on DLs and RCs respectively. State
Transport Departments and Enforcement agencies have been provided
access to the data on National Register and State Registers.”
(d) Insofar as fitness certificates for commercial vehicles under Section
56 of the Act is concerned, according to the Respondent No. 1, it is
the States who are responsible for issuing fitness certificates to
commercial vehicles. However the Ministry (MoRTH) has designed model
inspection and certification centres for effective inspection and
certification of motor vehicles from the point view of safety and
emissions. Furthermore, according to the Ministry, the installation
of model Centres in 10 States has been planned and 9 centres have been
sanctioned till date which are at different stages of implementation.
(e) Insofar as road engineering is concerned, according to the Ministry,
road safety has been made an integral part of the road design and road
safety audit of the selected stretches of national highways and
expressways are being regularly conducted. Further more, according to
the Ministry, a Committee has been constituted for formulating a
National Ambulance Code which has since been finalized. Incorporation
of the said Code within the framework of the Central Motor Vehicles
Rules is under consideration. In its counter affidavit, the Ministry
has also stated that a Committee has been set up to make
recommendations for a National Helpline for road accident victims
based on a common toll free number (1033) with dedicated round the
clock call centres. At the said centres, calls from the State
Highways will also be accepted and will be forwarded to the concerned
agency for providing relief.
(f) So far as road safety education is concerned, it has been stated in
the counter affidavit of the respondent No. 1 that a syllabus in first
aid has been made compulsory in driving schools; plan are underway for
incorporating a chapter for road safety for school children and a book
called “Sign Language” containing a chapter on helping road accident
victims has been published and circulated in adequate number to all
State Government schools as well as schools affiliated to the CBSE.
(g) Dealing with the issue of compulsory insurance the Ministry has
stated that under Section 146 of the Act there is a prohibition on use
of a motor vehicle which has not been insured. According to the
Ministry it has issued a Circular dated 20.6.2013 to all State
Governments to enforce the aforesaid provision of the Act.
(h) Insofar as licensing and prescription of minimum education and
qualification for drivers is concerned, according to the Ministry,
adequate provisions exist under the Act as well as the Rules. So far
as enforcement thereof is concerned, according to the Ministry, a
Committee has been set up to recommend staffing norms for the office
of Motor Licensing Officers. Further more, according to the first
respondent, setting up of adequate number of Institute of Driving
Training & Research (IDTR) and Regional Driving Training Schools
(RDTs) is contemplated and plans are also afoot to link these centres
with the jurisdictional RTO for conducting necessary tests before
issuing driving licenses.
(i) Refresher training course for heavy vehicle drivers are being
organized to inculcate safe driving habits and to acquaint the drivers
with the rules to be followed while using the roads.
(j) Publicity measures and awareness campaign of road safety is carried
out through DAVP, Doordarshan, All India Radio and newspapers and a
suitably designed system throughout the country for rigorous
inspection of motor vehicles and to remove the defects before they are
allowed to ply on roads is under contemplation; necessary amendments
in the Central Motor Vehicles Rules would be carried out prescribing
these tests which will replace the presently visual inspection of
vehicles which is in force.
(k) Insofar as post-accident medical response is concerned, it is stated
that the Ministry of Health and Family Welfare (MoHFW) has established
trauma centres in State Government hospitals to the extent possible
and during the 11th Plan the MoHFW had identified 140 government
hospitals in 16 States along the golden quadrilateral highway for
establishing trauma care facilities. The scheme is proposed to be
extended to another 85 government hospitals during the 12th Plan and
such facilities will be located near or on the national highways.
(l) A pilot project has been introduced along a stretch of NH-8 between
Delhi and Jaipur wherein 11 ambulances had been deployed at intervals
of 20 kilometers and the government has undertaken to bear the
treatment cost upto Rs. 30,000/- for the initial 48 hours. A National
Highway Accident Relief Service Scheme (NHARSS) has also been launched
to provide immediate eviction of injured victims to the nearest
medical aid centre and adequate number of cranes of different
capacities, ambulances and life-support ambulances to carry the
victims to 140 identified hospitals had been provided in different
States. 24 interceptors have been sanctioned to the States and Union
Territories to detect violations under the Act. In the counter
affidavit filed by the first respondent it is also stated that
following the decision of the Supreme Court in Pt. Parmanand Katara
vs. Union of India[1] instructions have been issued by the Ministry to
all the State Governments emphasising the need for providing medical
aid to road accident victims without waiting for the police for
completion of the legal formalities. Reference is made to a circular
dated 19.02.2004 issued to all State Governments regarding the
necessity of building confidence in the public for helping road
accident victims. In the said circular it is emphasized that the
members of the public, who render voluntary help to persons injured in
accidents, should not be unnecessarily questioned and detained in the
police stations and further that they should not be harassed or forced
to give their particulars.
14. There are several other significant aspects connected with the
present matter that have been highlighted by the Ministry (MoRTH). The
National Road Safety and Traffic Management Board Bill 2010 for creation of
a National Road Safety and Traffic Management Board (NRSTMB) has been
emphasised. The said Board is intended to act as a lead agency to oversee
road safety and traffic management activities in the country. The
functions of the Board as stipulated in the Bill include specification of
standards for construction and maintenance of national highways; specifying
the safety standards for mechanically propelled vehicles; to maintain a
comprehensive database on road safety; to issue guidelines for training and
testing of drivers; establishment and upgradation of trauma centres in
consultation with the Directorate General of Health Services. At present,
the Bill is pending before the Lok Sabha though the Parliamentary Standing
Committee has recommended scrapping of the same on the ground that the
Board is merely a recommendatory body and is a further addition to the
several other existing bodies acting in an advisory and recommendatory
capacity.
15. The proposed substitution of Section 163A and the Second Schedule to
the Act which has been approved by the Rajya Sabha on 8.5.2012 has also
been highlighted in the affidavit as a move to ensure payment of
higher/substantial compensation to victims of road accidents.
The Bill amends sub-section (3) of Section 163A permitting the
Government to revise the amount or multiplier specified in the Second
Schedule every three years, based on the cost of living and rise in price
index. The corresponding sub-section in the principal Act permitted the
Government to do so “from time to time”.
The Bill replaces the Second Schedule to lay down a new scheme for
calculating the compensation amount payable to a victim or his/her kin.
The formula for working out compensation is as follows:
a) The proven annual income of the victim is to be worked out.
b) Appropriate multiplier (higher of the multiplier based on the
age of the victim and the age of the surviving/dependent
parents/spouse/children) to be applied.
c) Multiply the proven annual income by the appropriate multiplier
to arrive at compensation amount, subject to following namely:-
i) The amount of compensation payable for Permanent Total
Disablement as defined in Schedule I of the Workmen’s
Compensation Act, 1923 (8 of 1923) shall be determined by
application of appropriate multiplier to proved income,
subject to maximum of Rs.10 lakhs.
(ii) The amount of compensation so arrived shall be reduced by
1/3rd in respect of fatal accidents (reduction of 1/3rd
represents living expenses for deceased person, had he been
alive).
The maximum annual income for calculation of compensation is proposed to be
fixed at Rs.1 lakh as against the present amount of Rs.40,000/-. The
minimum compensation amount payable is increased to Rs.1 lakh from the
erstwhile Rs.50,000/-. In case of death of non-earning person, the
Schedule fixes the compensation at Rs.1 lakh for children upto 5 years of
age, and at Rs.1.5 lakh for persons more than 5 years of age. Where such a
person is grievously injured in an accident, the maximum compensation that
may be awarded is Rs.50,000/-. In case of non-grievous injuries, the non-
earning person may be awarded a maximum compensation of Rs.20,000/-. The
Bill also seeks to enhance the general damages payable in case of death and
disability.
16. Finally, in its counter affidavit, the Ministry (MoRTH) has stated
that the enforcement of the core provisions of the Act comes within the
purview of the States/Union Territories and though the first respondent has
been impressing upon all States/Union Territories for strict enforcement of
the provisions of the Act by issuing advisories from time to time,
eventually, it is upto the States to respond appropriately in the matter.
17. The narration above indicates the enormity of the problem; the issues
connected therewith; the suggestions made in different quarters for
resolution and the attempts to provide a solution. The mosaic of facts,
information and suggestions have been laid only to serve as a basis to
undertake the exercise imminently necessary to resolve the issue, to the
extent possible, so far as the present is concerned and to visualise what
could be the requirements of the future. We wish to make it clear that the
exercise attempted cannot be considered to be either infallible or to be a
one time attempt at a permanent solution. Different facets of the issue
with new complexities are bound to recur from time to time requiring
renewed attempts at resolution. It is keeping in mind the above features
that the course that we intend to charter, as laid out in the paragraphs
hereinafter, has been visualized and conceptualized.
18. The total network of roads in India is approximately 47 lakhs
kilometers which is possibly the second largest network in the world
after the U.S.A. While Express Highways count for only 200 kilometers
in length, National Highways measure 70,934 kilometers; State Highways
1,63,896 kilometers; other PWD Roads 10,05,327 kilometers and rural
and other roads 27,49,805 kilometers. The statistics mentioned below
would indicate the relative position with regard to the extent of road
network; the vehicular population and the number of deaths that had
occurred in the past years in road accidents in India and other
countries like U.S.A., U.K., China etc. While the statistics
available in respect of the USA may reflect a higher rate of accidents
though a lower number of deaths (possibly due to more advanced after
trauma facilities) the figures in respect of the U.K. and China
highlights the magnitude of the problem in so far as India is
concerned. In this regard it would require a specific mention that
while the death rate in China, which had stood at par with India at a
certain point of time, has shown a significant downward trend in case
of India the said figures has shown a disturbing increase.
A - Data on RTAs
|Country |Road |Number of |Number of |Deaths |Seri|
| |network |vehicles |Accidents | |ous |
| |(km) | | | |inju|
| | | | | |ries|
|India |46,89,842|11,49,53,000|4,30,654 |1,26,896 |4,66|
|Source: | | | | |,600|
|“Accidental | | | | | |
|Deaths & | | | | | |
|Suicides in | | | | | |
|India, 2010”, | | | | | |
|National Crime | | | | | |
|Records Bureau. | | | | | |
|Year: 2009 | | | | | |
|USA |65,86,610|25,41,66,000|1,08,00,00|33,808 |22,1|
|Source: | | |0 | |7,00|
|US Census Bureau| | | | |0 |
|Year: 2009 | | | | | |
|UK |3,94,428 |3,42,00,000 |1,64,000 |2,222 |2,20|
|Source: | | | | |,000|
|Department for | | | | | |
|Transport | | | | | |
|Year: 2009 | | | | | |
|China |41,06,387|20,70,61,286|-- |70,134 |-- |
|Source: | | | | | |
|“Global Status | | | | | |
|Report on road | | | | | |
|safety, 2013”, | | | | | |
| | | | | | |
|WHO. | | | | | |
|Year: 2010 | | | | | |
|Brazil |15,80,964|6,48,17,974 |-- |37,594 |-- |
|Source: | | | | | |
|“Global Status | | | | | |
|Report on road | | | | | |
|safety, 2013”, | | | | | |
|WHO. | | | | | |
|Year: 2010 | | | | | |
B – Data of relative figures in respect of China & India2
Number of Road Accidents
|Year |China |India |
|2004 |5,17,889 |4,29,910 |
|2005 |4,50,254 |4,39,255 |
|2006 |3,78,781 |4,60,920 |
|2007 |3,27,209 |4,79,216 |
|2008 |2,65,204 |4,84,704 |
|2009 |2,38,351 |4,86,384 |
Number of Persons Killed
|Year |China |India |
|2004 |1,07,077 |92,618 |
|2005 |98,738 |94,968 |
|2006 |89,455 |1,05,749 |
|2007 |81,649 |1,14,444 |
|2008 |73,484 |1,19,860 |
|2009 |67,759 |1,25,660 |
19. The facts mentioned above would leave no room for doubt that Indian
roads have proved to be giant killers demanding immediate attention and
remedial action. Such attention and necessary intervention, in the first
instance, is required to be made by the concerned governmental agencies.
While there is no reason for any skepticism over the abundant concern shown
by all concerned to the issues highlighted and also the attempted solutions
both in the field of law enforcement as well as amendments in the law,
besides limited experiments in providing better after trauma care, for
reasons that need not detain the court, the results so far have not been
very encouraging. The accident and casualty graphs continue to run on an
even keel over the last several years.
20. An accident is an incident that happens unexpectedly and
unintentionally. It is occasioned either by human failure or human
negligence. Viewed from the above perspective and also thorough hindsight
every road accident is an avoidable happening. The history of humankind
has been one of conquests over the inevitable. The resignation to fate has
never been the accepted philosophy of human life. Challenges have to be
met to make human life more meaningful. This is how the constitutional
philosophy behind Article 21 has been evolved by the Indian courts over a
long period of time. It is this process of development and the absence of
significant and meaningful results from the governmental action till date
that impels us to delve into the realms of the issues highlighted by Dr.
Rajaseekaran in the present writ petition under Article 32 of the
Constitution.
21. Having considered all the relevant facts and also the suggestions
that have come from the different quarters it appears to us that the four-
dimensional approach that the Government had earlier attempted by setting
up four different working groups to go into the four issues of road safety,
namely, enforcement, engineering, education and emergency care would be the
best manner to approach the issues arising. We, therefore, intend to adopt
the same in the exercise proposed to be undertaken.
Enforcement
22. Enforcement of the existing laws, regulations and norms having a
bearing on road safety can be conveniently sub-divided into different
categories like-
(i) licensing;
(ii) certification of fitness of vehicles;
(iii) limits of use of vehicles i.e. passenger carrying
capacity, weight carrying capacity etc.;
(iv) use of road safety devices;
v) adherence to norms including user of roads, and;
(vi) deployment of adequate manpower for enforcement of the existing
provisions of law.
23. The provisions of the law i.e. Motor Vehicles Act, 1988 governing the
aforesaid features of the matter can now be taken note of.
A. Licensing
24. (I) Section 3 of the Motor Vehicles Act, 1988 states that no person
shall drive a motor vehicle in a public place without holding a valid
driving license. As per the mandate of Section 6, a person cannot hold more
than one such license. Further, Section 4 sets the age limits for driving
of motor vehicles: 18 years for cars, 16 years for motorcycles, and 20
years for transport vehicles. Section 5 prohibits the owner to permit any
person to drive the vehicle without satisfying Sections 3 & 4. If an owner
permits any person to drive the vehicle without a driving licence, the
owner is liable for imprisonment upto 3 months or fine upto Rs. 1,000 or
both, under Section 180.
(II) Under Section 19, the licensing authority may disqualify a
person from holding a driving license for certain reasons, such as if the
person (i) is a habitual criminal or habitual drunkard, (ii) is a habitual
addict to any narcotic drug or psychotropic substance within the meaning of
the NDPS Act, 1985, (iii) is using or has used a motor vehicle in the
commission of a cognizable offence, (iv) has by his previous conduct as
driver of a motor vehicle shown that his driving is likely to be attended
with danger to the public, (v) has committed any such act which is likely
to cause nuisance or danger to the public, etc.
(III) The Court may also disqualify a person from holding a driving
license, apart from imposing any other punishment. In the following cases,
disqualification by the Court is mandatory under Section 20(2):
- not stopping the vehicle when required to do so by any Police Officer
(not below the rank of Police Sub-Inspector in uniform) if the vehicle
is involved in a road accident (Section 132)
- not shifting the victim of the accident in which his or her vehicle is
involved to the nearest hospital/ medical practitioner (Section 134)
- not giving, on demand by a Police Officer, any information required by
him (Section 134)
- not reporting the occurrence of accident to insurer (Section 134)
- driving by a drunken person or by a person under the influence of
drugs (Section 185)
- driving dangerously (Section 184)
- racing and trials of speed (Section 189)
- using a vehicle without registration (Section 192)
B. Vehicular Fitness
25. (I) Under Section 39, a person cannot drive a motor vehicle or
cause or permit his vehicle to be driven without proper registration and
display of the registration mark. If a vehicle is not in a fit condition to
be used on the public road or is being used for hire without valid permit,
the appropriate authority under Section 53 can suspend the registration
certificate.
(II) Using a vehicle without registration can result in fine, the
minimum amount of which is Rs. 2,000 and maximum is Rs. 5,000, under
Section 192. For a subsequent offence, the maximum amount of fine may
extend to Rs. 10,000, subject to a minimum of Rs. 5,000. The punishment is
not applicable for vehicles used in an emergency for the conveyance of
persons suffering from sickness or injuries or for the transportation of
food or material to relieve distress or of medical supplies for a like
purpose, per sub-Section (2).
(III) A vehicle cannot be used on the road without proper insurance
certificate, as under Section 146. The owner is responsible for obtaining
insurance. Driving an uninsured vehicle can result in punishment in
imprisonment upto 3 months or fine upto Rs. 1000/- or both, under Section
196.
(IV) In cases of vehicles involved in road accidents, the driver or
owner must report such involvement to the concerned police officer. Failure
to do so would attract punishment under Section 187, viz. imprisonment upto
3 months or fine upto Rs. 500, or both (in addition to the punishment for
the accident). For the subsequent offence under this section, the
imprisonment can be upto 6 months and fine amount upto Rs. 1,000. Moreover,
such a vehicle has to be inspected by the authorized officer of the Motor
Vehicles Department (Section 136).
(V) Chapter V of the Central Motor Vehicles Rules, 1989 contains
exhaustive provisions on the construction, maintenance and equipment of
motor vehicles, dealing the dimensions of the vehicle, tyres, brakes,
steering gears, safety glass, windscreen wipers, emission standards, noise
reduction measures, and speed governors. The Rules also provide for the
installation of devices such as helmets, safety belts, padded dashboards
etc. for the safety of drivers, passengers and road users. Violation of the
standards prescribed in relation to road safety, control of noise and air
pollution is fine amount upto Rs.1,000/- for the first offence and Rs.
2,000/- for the subsequent offence, under Section 190 of the MV Act.
C. Use of Roads
26. (I) The MV Act contains several provisions regulating the use of
roads by motor vehicles.
(II) Section 119 mandates every driver to drive the vehicle in
conformity with traffic signs and prescribed driving regulations and to
comply with all the directions given to him by any Police Officer engaged
in the regulation of traffic. Under Section 121, the driver must signal his
intention to stop or take a left or right turn.
(III) Leaving a vehicle at rest on any public place in such a way as
to cause or likely to cause danger, obstruction or undue inconvenience to
other road users is an offence under Section 122. Such vehicles may be
towed away by Police and the owner may be charged for towing in addition to
the penalty for offence. A vehicle may also be towed away by the police (in
uniform) if it is left attended in a public place for more than 10 hours,
or parked at a ‘No Parking Zone’, or parked in a manner that creates a
traffic hazard (Section 127).
(IV) Carrying more than one pillion rider on a two-wheeler is an
offence under Section 128. Wearing a helmet of ISI standard, while riding a
motor cycle in a public place, is mandatory under Section 129.
(V) Under Section 183, if a driver of a motor vehicle contravenes
the speed limit, he/she shall be punishable with fine upto Rs. 400/- for
the first offence and Rs. 500/- for the subsequent offence, and if the
owner causes the driver to contravene the speed limit, he/she shall be
punishable with fine upto Rs. 300/- for the first offence and Rs. 500/- for
subsequent offence. Under Section 184, whoever drives a motor vehicle at a
speed or in a manner which is dangerous to the public, having regard to all
the circumstances of the case including nature, condition and use of the
place where the vehicle is driven and the amount of traffic which actually
is at the time or which might reasonably be expected to be in the place,
shall be punishable for the first offence with imprisonment for a term
which may extend to six months, or with fine which may extend to one
thousand rupees. In case of repeated offence committed within three years
of the first offence, he may be punished with imprisonment for a term which
may extend to two years or with fine which may extend to two thousand
rupees or with both. The driver can be arrested on the spot. Taking part in
a race or trial of speed of any kind without the Government’s written
permission is punishable under Section 189, with imprisonment for a term
which may extend to one month or with a fine upto Rs 500 or with both.
(VI) Under Section 185, punishment for drunken driving is
imprisonment upto 2 years or fine upto Rs. 3,000/- or both, and the driver
can be arrested on the spot. Further, Section 186 makes a person who is
mentally or physically unfit to drive, punishable for the first offence of
driving in such a situation with fine upto Rs. 200/- and Rs. 500/- for
subsequent offence.
(VII) Driving a vehicle exceeding permissible weight can result in a
punishment of Rs. 2,000/- and an additional amount of Rs. 1,000/- per ton
of excess load together with the liability to pay charges of off-loading
the excess load, per Section 194.
(VIII) Using vehicle in contravention of permit condition can
result in fine upto Rs. 5,000/- but not less than Rs. 2,000/- for the first
offence and imprisonment upto 1 year but not less than 3 months or with
fine amount upto Rs. 10,000/- but not less than Rs. 5,000/- or both for the
subsequent offence (Section 192(a)).
27. While improvements in different spheres of law are imminent with
passage of time, any change of law has to be preceded by serious debate and
consideration of a wide variety of factors all of which takes time. The
legislative procedure is also time consuming. In fact several amendments
in the Motor Vehicles Act as indicated in the earlier part of this order
are under consideration. While such changes or amendments can be brought
in only upon completion of the necessary exercise, the enforcement of the
existing laws would stand on an entirely different footing. Strict and
faithful enforcement of all existing laws and norms must be insisted upon
not only as an absolute principle of law but also for the huge beneficial
effects thereof. As noted earlier, out of the total road network in the
country which is about 47 lakhs kilometers in length, national highways
account for only 70,934 kilometers only. It is over these national
highways that the executive power of the Union extends whereas in respect
of the State highways and other State roads the Executive power of the
State runs. That apart, roads, traffic thereon and vehicles other than
those mechanically driven are covered by relevant entries in List II of the
Seventh Schedule giving jurisdiction to the States both in matters of
legislation and exercise of executive power. None of the States are
parties to the present writ petition. Though we are inclined to accept that
directions to the States to enforce the existing laws can be issued even in
their absence, we cannot help observing that the matter cannot be allowed
to rest merely by issuance of directions by this Court. Observance and
implementation of the directions to be issued by this Court in exercise of
power under Article 142 of the Constitution would require a continuing
scrutiny and we intend to monitor such implementation and to make the
States accountable for any inaction or lapse in this regard. We,
therefore, implead all the States as party respondents and direct the
Registry to issue notice to them. For the present we direct the Government
of each State to effectively implement and enforce all the provisions of
the Act in respect of which the States have the authority and obligation to
so act under the Constitution in addition to the tasks specifically alluded
to in the subsequent paragraphs of the present order.
Engineering
28. In so far as road engineering is concerned, the concerned departments
in the Central Government as well as the State Governments must make road
safety an integral part of road design at the planning stage and conduct
regular road safety audit of selected stretches of expressways, national
highways, state highways and other state roads to identify what can be
reasonably termed as ‘black spots’ i.e. problem spots where a large number
of accidents occur. Regular maintenance of all highways and roads both by
the Central and the State Governments, in order to make the same traffic
worthy, is the minimum that the citizens of this country can expect and are
entitled to. We hardly need to emphasis that it is the duty of the Central
and the State Governments to ensure the availability of safe roads worthy
of traffic, though we must hasten to add that our observations in this
regard must necessarily be understood in the context of the resources
available to the Central and the State Governments. We accordingly direct
the respective Governments to act accordingly.
Education
29. The importance of education on road safety cannot be gainsaid. Such
consciousness needs to be developed amongst all citizens and should be
inculcated from a young age. The importance of informing and educating the
citizens of the virtues of road safety lies in the fact that, in the last
resort, it is such realization alone that can lead to better and safer use
of roads and vehicles. It is heartening to note that serious consideration
on this aspect of road safety has been expended by the Union Government
details of which measure have been noted earlier. We direct the Union
Government to continue to expend its efforts and all such measures shall
also be implemented by the State Governments.
Emergency
30. In so far as emergency is concerned there is perhaps no denial of the
fact that many deaths and loss of limbs and serious disfiguration of
victims can be saved by timely medical attention. Lack of adequate number
of good samaritans; squabbles between police stations and administrative
authorities over jurisdiction; lack of quick response in removing the
victims to hospitals and centres of medical care due to lack of necessary
infrastructure like ambulances; absence of adequate and well spread out
number of hospitals and medical centres; the poor condition and lack of
adequate infrastructure in government run hospitals and health centres and
the prohibitive costs of health care facilities in the more advanced
centres of medical care besides insistence of large deposit of money by
such advanced health care centres in the private sectors are some of the
problems that have seriously plagued post trauma/accident care in the
country. As already noted, limited attempts have been made on experimental
basis and that too on national highways alone to provide better amenities
and also to take care of the fund requirements for the first 48 hours
following the accident. The experiment needs to be extended by the Central
Government to more stretches of the National Highways besides introduction
and implementation of such measures by the States in the roads under their
control and jurisdiction.
31. 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. In so far as suitable amendments to the laws are
concerned, this Court can only hope and trust that all such changes or
amendments which are presently under legislative consideration would be
expedited and measures as may be considered necessary by legislature in its
collective wisdom will be brought in the statute book in due course. At
the same time, what has been admitted to be necessary and, therefore, has
been initiated by the Central Government in so far as engineering and road
education is concerned shall be implemented and directions to so act may be
construed to have been issued by this Court by the present order.
Similarly, in so far as emergency care is concerned, what has been
initiated by the Central Government, as stated in its affidavit, shall be
suitably implemented and extended subject to the limits of its financial
ability. The States also shall act accordingly and initiate similar
measures if required, in a phased manner.
32. We are aware that the journey that has been undertaken would be long
and arduous. It is difficult to visualise when the same would end, if
at all. To ensure the success of the process undertaken, constant
supervision of this Court of the measures undertaken by the Central
Government and the State Governments and the extent of affirmative
action on part of the Union and the States will have to be measured and
monitored by the Court from time to time. Keeping in mind that the time
available to this Court is limited we deem it proper to constitute a
Committee to undertake the process of monitoring on behalf of the Court.
The Committee will have the following composition and shall function in
the manner indicated below:
Composition of Committee
|Sl.No. |Name | |
|1. |Hon’ble Mr. Justice K.S. Radhakrishnan|Chairperson |
| |Judge, Supreme Court of India | |
| |(Effective from 15th May, 2014) | |
|2. |Mr. S. Sundar |Member |
| |Distinguished Fellow, TERI | |
| |Former Secretary, Ministry of Surface | |
| |Transport, Government of India | |
|3. |Dr. (Mrs.) Nishi Mittal |Member |
| |Ex. Chief Scientist, CRRI, | |
| |Formerly HoD, Traffic Engineering and | |
| |Safety (TES), | |
| |Central Road Research Institute | |
33. (I) The composition of the above Committee will be notified by
the Ministry of Road Transport and Highways, Government of India
forthwith.
(II) The Committee will have its office in the national capital and
requisite infrastructure including manpower will be provided by the
Central Government.
(III) The remuneration and perquisites of the Chairman of the
Committee and its members will be fixed by the Union Government in
consultation with the individual concerned and in accordance with
prevailing norms.
IV) All State Governments as well as different
Ministries/Departments/Wings of the Central Government who are
currently looking after the multi-dimensional issues pertaining
to road safety will submit their first report to the Committee
within three months from today indicating the state of
implementation and enforcement of all laws pertaining to (i)
licensing; (ii) certification of fitness of vehicles; (iii)
limits of use of vehicles i.e. passenger carrying capacity,
weight carrying capacity etc.; (iv) use of road safety devices;
(v) adherence to norms including user of roads, and (vi)
deployment of adequate manpower for enforcement of the existing
provisions of law.
V) The Union Government as well as the State Government shall also
indicate their views on the necessity of further change in the
law, if any.
VI) The Union Government as well as the Government of the States
shall also offer their views on the suggestions/recommendations
of the different bodies/persons noticed and mentioned in the
present order which are presently not under implementation.
VII) The Committee shall undertake a detailed scrutiny and
examination of the Report(s) that may be submitted and the views
of the Central and State Governments with regard to necessity of
further legislation or changes in the existing laws.
VIII) The Committee will submit its report to this Court within three
months after receipt of report from the Union and the State
Governments indicating and expressing its views on each of the
matters referred to in the present order including the
deficiencies and the defaults on the part of any of the
stakeholders, as may be found.
34. The matter be posted for further consideration before this Court on
the expiry of six months from today along with the report (s) as may be
submitted pursuant to the present order.
35. A copy of this order be furnished to the petitioner and each of the
Respondents as well as to the Chief Secretaries of all the States/Union
Territories.
...…………………………CJI.
[P. SATHASIVAM]
.........………………………J.
[RANJAN GOGOI]
…..........……………………J.
[N.V. RAMANA]
NEW DELHI,
APRIL 22, 2014.
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[1] (1989) 4 SCC 286
2 Source: “Statistical Year Book of India – 2014” published by the
Ministry of Statistics and Programme Implementation.
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57
