S.R. Bhat Vs. State of Karnataka and Others - Court Judgment

Excerpt:
- land acquisition act, 1894.[c.a. no. 1/1894]. section 28: [n.k. patil, j] statutory benefits executing court declining to grant statutory benefits held, the executing court is not competent to decide the redressal of the grievances. petitioners are to make necessary applications either before the l.a.o., or before the deputy commissioner. it is needless to clarify that the petitioners are entitled for rent or damages for use of the lands by the beneficiary or the competent authority. it is for the petitioners to establish that the possession of lands had been taken much earlier to the issue of preliminary notification. - in the context of the second aspect of the matter what this court needs to also examine is the consequential situation that arises wherein public resources are.....order1. 'to be or not to be', that is the question or in other words, where the circumstances seriously endanger safety, whether it is the fundamental duty of the state to take all necessary steps to save and protect life is the basic issue involved in this litigation. the subsidiary question is as to whether the state can permit citizens to expose themselves to grave danger that may jeopardise life and limb or whether, it is the function of the law to prevent such reckless exposure; to which the answer is that attempted suicide is a criminal offence. in the context of the second aspect of the matter what this court needs to also examine is the consequential situation that arises wherein public resources are involved at the post disaster stage and whether the exposure to risk in such.....

Judgment:
ORDER

1. 'To be or not to be', that is the question or in other words, where the circumstances seriously endanger safety, whether it is the fundamental duty of the State to take all necessary steps to save and protect life is the basic issue involved in this litigation. The subsidiary question is as to whether the State can permit citizens to expose themselves to grave danger that may jeopardise life and limb or whether, it is the function of the law to prevent such reckless exposure; to which the answer is that attempted suicide is a criminal offence. In the context of the second aspect of the matter what this Court needs to also examine is the consequential situation that arises wherein public resources are involved at the post disaster stage and whether the exposure to risk in such instances must necessarily be minimised. The answer to the last question involves anexamination of the issue as to whether a class of citizens who insist on flying in the face of providence by contending that they should not be forced to wear helmets even when globally accepted security regulations insisted upon this, and are the victims of recurrent road tragedies, can be allowed to strain the State's already overburdened medical facilities and public resources because of self-negligence, have a right to insist that such suicidal tendencies must be permitted.

2. The approximate figures put forward in the State of Karnataka between the period February, 1995 when the compulsory helmet rule was suspended and July 1997, indicate that the financial burden in this small category of cases wherein the loss of life or injury to the head could have been avoided or considerably minimised had a helmet been worn, aggregates to Rs. 7.8 Crores in this State in terms of medical facilities and services alone. I need to clarify that some of the two wheeler accidents were so grave that the helmet could have made no difference, but I am here referring only to this restricted class of cases where the driver and pillion rider of a motorised two wheeler have unnecessarily lost their lives, gone into coma or been otherwise seriously injured due to head injury, which could have been prevented or considerably minimised due to the use of a helmet. The available medical facilities are hopelessly overworked be they private or public, and there can be no two opinions about the fact that these are badly needed for the more deserving genuine medical ailment cases and that therefore, no citizen can be permitted to recklessly insist on taking risks of getting injured and contributing to unnecessary diversion of these limited facilities. Again, what cannot be lost sight of is the fact that in the ultimate analysis, compensation claims aggregating to Rs. 13.68 Crores have been preferred in this class of cases in Karnataka alone and it is the Nationalised Insurance Companies that have to ultimately meet these claims out of the public exchequer. Lastly, what needs to be also emphasised is that the opposite party involved in the accident is required to be subjected to protracted legal proceedings and liabilities because the sympathy is always with the dead or the injured irrespective of who was at fault. These are serious issues which point to only one conclusion namely that even if a citizen or a group of citizens for reasons of convenience or carelessness insist on throwingsafety to the winds, that the State just cannot permit them to do so. The answer to the 3rd question therefore is an emphatic no.

3. The parent statute namely the Motor Vehicles Act, 1988 prescribes by virtue of Section 129 for certain protection in relation to persons travelling on motorised two wheelers. The section reads as follows:--

'Section 129. Wearing of protective headgear.-

Every person driving or riding (otherwise than in a side car, on a motor cycle of any class or description) shall, while in a public place, wear protective headgear conforming to the standards of the Bureau of Indian Standards:

Provided that the provisions of this section shall not apply to a person who is a Sikh, if he is, while driving or riding on the motor cycle, in a public place, wearing a turban:

Provided further that the State Government may, by such rules, provide for such exceptions as it may think fit'.

(emphasis supplied)

4. What needs to be highlighted is that it has been made compulsory by law under the Central Statute for every person driving or riding a motor cycle of any class or description to wear protective headgear conforming to the standards of the Bureau of Indian Standard which means that.-

(a) The regulation applies both to the driver and the pillion rider;

(b) That the regulation applies to every class of motorised two wheeler irrespective of its engine capacity;

(c) That the headgear is required to be of such a design and quality that it in fact serves the purpose for which it is intended.

5. I need to emphasise here that having regard to the possibility of spurious and unscientifically designed helmets being used, Rule 230(2) and (3) of the Karnataka Motor Vehicles Rules not only requires all helmets to strictly comply with the I.S.I. standard requirements which have to be displayed prominently on the helmet but there are equally important provisions such as the need to provide for reflective red colourstripes on the back of the headgear of a prescribed size. Rule 230 (2), (3) and (4) reads as follows.-

(2) A protective headgear referred to in sub-rule (1) should be one which has been approved by the Indian Standard Institute, Standard No. IS 41551-1976.

(3) Each protective headgear shall be permanently and legibly labelled, in a manner such that the label or labels can be easily read without removing the padding or any other permanent part with the following.-

(a) Manufacturer's name or identification;

(b) Size;

(c) Month and year of manufacture;

(d) The mark of Indian Standard Institute.

(4) The headgear shall have minimum three adhesive type retro-reflective red colour stripes on the back of the headgear which will illuminate during the night. The stripes should be of the size of 2 cm x 13 cm and affixed horizontally to the headgear'.

6. In this context, it would be desirable to reproduce the provisions of Rule 230(1) of the Karnataka Motor Vehicles Rules, 1989, which reads as follows:

Wearing of protective headgear.--(1) Every person while driving or riding a motor cycle of any type that is to say motor cycles, scooters and mopeds shall wear protective headgear of such quality which will reduce head injuries to riders of two wheeler resulting from head impacts.

(emphasis supplied)

7. It is necessary to emphasise that there is no ambiguity left with regard to the issue that the rule is all inclusive insofar as it apples to all persons travelling on motorised two wheeler vehicles irrespective of the type of vehicles which is why the rule specifically refers to motor cycles, scooters and mopeds. The wisdom behind including even mopeds was because of the capacity to attain high speeds thanks to modern technology, their light weight and consequent very high vulnerability in case of an accident.

8. In the course of the hearing of the petition the learned Government Advocate on instructions from the Officers present stated that the State Government appears to have diluted the applicability of Rule 230 by seeking to introduce the proviso which reads as follows.-

'Provided that sub-rule (i) shall not apply to a person driving motor cycle with not more than three metric brake-horse power'.

It is not very clear as to what precisely is intended by the wording of this proviso which appears to suggest that sub-rule (1) will not apply to a person driving a 'motor cycle which has a capacity of less than three horse power'. It was sought to be argued therefore that the exemption would cover motor cyclists with vehicles of less than three horse power. This contention is totally and completely untenable.

9. I have referred to Section 129 of the Motor Vehicles Act, 1988 which is clear and unambiguous and any rule that is made in exercise of powers derived under that Act must as of necessity be for purposes of carrying out the objectives of the Act and cannot be ultra vires the parent Act or contain a provision that defeats the express requirements of the Act. Rule 230 de hors the proviso is in conformity with the provisions of the Act and assuming, that at some time such a proviso was sought to be grafted on to it for purposes of negating and defeating the provisions of Section 129 of the Motor Vehicles Act, that proviso would necessarily be ultra vires the parent statute, bad in law and would therefore have to be ignored.

10. The Petitioner's learned Advocate submitted that since this contention is raised during the hearing that he should be permitted to formally amend the petition and include a prayer that the proviso be quashed. I have dispensed with the formal amendment because it is on a question of a point of law and I have heard the learned Counsel on both sides on this issue. The proviso in question being ultra vires Section 129 of the parent Act and Rule 230 will necessarily stand quashed.

11. One other aspect of the matter that emerged in the course of the arguments was that the learned Government Advocate submitted that under Section 129 of the Motor Vehicles Act there is a specific exclusion from the helmet rule if a person is a Sikh and it is indicated in the subsequent proviso that the StateGovernment may by such rules provide for such exceptions as it may think fit. The limited power conferred on the State Government as far as Rule 129 is concerned is to make an exception in respect of similar categories of persons who for reasons of religion or custom normally wear a turban and in whose case therefore, the wearing of a helmet would not be feasible. It would be a misconception of the law if this proviso were to be understood to empower the State Government to dilute the compulsory and mandatory requirements of Section 129 by exemption of the whole or greater class of motorised two wheelers. This would be doing violence to the law and which is something that is wholly' impermissible. It would be wholly outside the legislative competence of the State Government.

12. In the course of the arguments the learned Counsel pointed out to me, and very justifiably, that if one were to analyse the number of cases in which head injuries have occurred to persons on two wheelers, that in approximately 70% of these cases, the causative factor can be traced to the road conditions. They have demonstrated to me that the road surfaces are in a majority of cases absolutely uneven but very often that there are huge pot-holes which are often clumsily filled with mud which will only worsen the situation, that whenever it rains these pot holes are not even visible, that the roads are badly lighted, rarely maintained and that cumulatively, it is the road condition that is contributing to the accident. A strong plea was made to the Court, that since the relief prayed for is essentially corrective and is directed towards safety and saving lives, that the Court must in exercise of its inherent powers issue appropriate directions to the State Government to in turn order the heads of all municipal corporations and municipalities, on a war footing to repair and maintain the roads within their jurisdiction in a safe and satisfactory manner. It is a tragedy of our times that the basic duty and function of the Municipal Authorities to maintain all public roads in a safe and satisfactory condition has to be enforced through an order passed by the High Court. However, since it is demonstrated that the failure in this regard is abnormally high, contributing to loss of life, it is imperative that appropriate directions in this regard be issued.

13. The State Government shall order the heads of all Municipal Corporations, Municipalities and authorities incharge of local areas to forthwith undertake immediate repairs to all public roads within their jurisdiction and this process shall be completed latest by 31-12-1997. The roads shall thereafter be maintained principally in a safe and satisfactory manner that ensures the safety of citizens and vehicles who are using them.

14. The learned Advocates appearing in the matter pointed out to me that the principal reason for the horrifying condition in which the roads are at present, is because of the staggering corruption levels that prevail and the nexus between the authorities/Engineers who are incharge of the jobs and the contractors and sub-contractors with whom they work in partnership whereby 90% of the money is misappropriated. The road contracts are deliberately undertaken in such a manner that the defects surface within a few weeks so that further contracts can be awarded. There are numerous instances in which bogus documents are prepared particularly in relation to repairs which are never undertaken and in a few instances where the contractors have been pulled up, they admit having done very sub standard work because the major part of the funds have to be shared with the officials and engineers. It is therefore recommended that the State Government issue a direction that the local bodies in charge of these functions shall every six months publish the names of the Officers-in-charge of maintaining the roads, the names of the contractors to whom the jobs have been entrusted and the amount involved in each of these job contracts. This will enable the citizens of the area to not only check corrupt practices but to also ensure that corrupt officers are removed from their posts and dishonest contractors are permanently black-listed.

15. The State of Maharashtra has recently set up a Road Development Corporation which will be entrusted with the overall functions from construction right down to the maintenance of roads. These are specialised functions and this is a step in the right direction. Today citizens are held to ransom by an unholy alliance between corrupt officers and incompetent contractors and the time has come for a solution. A Corporation manned by qualified engineers, using its own equipment and accountable to the public is the need of the hour and the State Government should seriously consider this proposal.

16. This petition has been filed by a learned Member of the Bar who has briefly pointed out to the Court that he hasundertaken this exercise in the public interest and out of a sense of responsibility but also in order to demonstrate that the action of the State Government in suspending the provisions of Rule 230 of the Karnataka Motor Vehicles Rules is high handed and arbitrary, that such action is unprecedented in legal circles and creates a dangerous precedent of a State Government which is invested with the Constitutional functions of upholding the law not subverting it. Rule 230 clearly prescribes that every person while driving or riding a motorised two wheeler of any type that is to say motor cycles, scooters and mopeds shall be required to wear protective head-gear of such quality which will reduce head injury to riders of two wheelers resulting from head impacts. The petitioner's learned Advocate points out to me that the internationally accepted head-gear which has been tried and tested in respect of providing protection against head injuries in such instances is a helmet and that by virtue of the provisions of Rule 230, the wearing of a helmet is mandatory. He states that the provisions of Rule 230 were being observed in the State of Karnataka and that the State Government on 9-2-1995 issued a cryptic wireless message to all District Magistrates, Superintendents of Police and Commissioners of Police that the wearing of helmets has been made optional. As a result of this decision, persons riding two wheelers immediately stopped wearing helmets and the number of those who in fact use such protective head-gear has become minimal. The Advocate demonstrates to me that Rule 230 has been promulgated by the State Government in exercise of powers derived under the Motor Vehicles Act and that Section 129 of that Act makes the use of helmets compulsory. These provisions of law are still on the statute book, they have not been repealed and in total defiance of statutory provisions, the then Transport Minister Shri Beelagi, by executive fiat virtually abrogated the law as enunciated by Parliament. Learned Advocate submitted that this is the second or third time that such populist gimmicks have been indulged in and added that it was a headless and unsustainable decision which has resulted in the deaths of hundreds of youngsters and over 300 of them reduced to vegetables in a state of coma and he prayed that the State Government should be ordered to pay exemplary damages to every one of the families. The decision is indefensible and the State Government should be extremely careful about such decisions because the liability in each situations would be 100%.

17. The petitioner's learned Advocate in an attempt to demonstrate the danger to the riders of two wheelers who are unprotected by helmets has pointed out from paragraph 9 of the petition that 20% of all road accidents involving two wheelers result in head injuries and that the mortality among two wheeler riders not wearing helmets was 250% higher than those who are protected by helmets. Pausing here for a moment, I need to point out that the statistics compiled by the International Automobile Association indicate that as far as two wheeler riders are concerned, irrespective of the speed at which the vehicle is moving or the manner in which the vehicle is being driven, that when an accident involving a two wheeler takes place, the incidence of a head injury to the riders is as high as 95%. The research also demonstrated that having regard to the angle, direction and line of movement, even in those few cases where the rider is able to escape from a head injury, that the chances of a head injury occurring to the pillion rider are 100%. It is for this reason that irrespective of the advancement of various safety norms upto now, no better substitute has been found for protecting the most vital part of the human body, namely the head in the case of a two wheeler accident, which is why the helmet rule is universally enforced in every country of the world.

18. The petitioner's learned Advocate pointed out to me that a study done in the City of Bangalore indicated that within the few months that followed the relaxation of the helmet rule, that the number of persons wearing helmets initially came down to 52% and then to 14%. Obviously, since the petition was filed in the year 1995 the learned Advocate who filed the petition did not have the subsequent statistics because the survey done in April-June 1997 indicates that the percentage of two wheeler riders in this State who wear helmets has come down to 0.8%. It is in this background, that the petitioner's learned Advocate has advanced a two fold submission, the first being that in the overall interest of safety that the provisions of Rule' 230 must be rigorously enforced. The second submission is that if for whatever reason Rule 230 was required to be altered that the law prescribes a procedure for the amendment or the repeal of that rule and that neither of the two has been done. He submitted that the wireless message refers to representations that were made to the Hon'ble Minister and that it is notpermissible through an executive fiat to either suspend the operation of a statute or a rule or to direct that its provisions shall stand suspended.

19. I need to reiterate here that the petitioner's learned Advocate is more than justified when he points out that it is unfortunate that it has become the order of the day for off the cuff decisions of this type to be taken and that such action does not have the slightest semblance of legality. The Constitution of India provides for the operation of a rule of law and it is high time that everyone concerned, particularly some of the elected representatives who unfortunately assume that they are above the law, realises that nobody is above the law and that its provisions apply equally to all citizens that laws must be respected, adhered to and enforced and not tampered with at will. The Constitution also provides that the procedure prescribed by law shall be followed by all authorities and even though it is rather late in the day, it is necessary to send a reminder that this principle will have to be and must be observed. What has happened in this case is not only distressing but it is absolutely shocking and I shall very briefly record that since the date on which the helmet rule was made optional in this city of Bangalore alone, 267 young persons aged between 21 and 24 have lost their lives, 682 others have been gravely injured but a recent survey done indicates that there are 67 persons of the same age group who had been ruined for life due to serious head injuries which have either left them in coma or reduced them to the position of a vegetable. In all those cases the compensation claims run into crores of rupees and it is the nationalised Insurance Companies that will have to pay out the compensations that will be awardable in these cases. The saddest, most serious and the most distressing aspect of the matter is that the loss of life or the impairment for life that has occurred in these cases in the city of Bangalore will probably have to be multiplied a 100 times if one were to compute the statistics for the whole State and these horrifying consequences are all traceable to the irresponsible manner in which these vital decisions were taken. It is also a matter of record, and it must be said to the credit of the Police and Medical Authorities as also the Transport Authorities that they did point out very clearly and very correctly to the Minister and the previous Chief Minister as to what the terrible consequences would be if thehelmet rule were to be made optional and that despite this, the decision was taken and implemented. The serious question that the Courts would have to consider in situations of this type where the law and legal provisions are breached by the very same persons who are required to uphold the law and enforce it, is as to whether the party responsible for the breach should not be held liable for the consequences and the damage that occurs thereby and whether the Courts may soon have to invoke the concept of personal liability apart from vicarious liability.

20. To my mind, the case presented by the petitioner is virtually indefensible. The learned Government Advocate did try his very best to give various explanations and reasons and he also did his very best to request the Court that some time be given so that the Government could reconsider the question particularly since there is a different Government in power now but I have not agreed to this particularly because when it is pointed out that Rule 230 exists on the statute book, that the rule has neither been amended nor repealed, that there can be no question of the authorities asking for time to give effect to the law. The suspension of the operation of Rule 230 is all that has been done and that will have to be quashed and the status quo ante restored with immediate effect. The seriousness of the matter is such that time is the essence insofar as every minute and every hour is precious because valuable lives particularly of young people are at stake and to my mind therefore, the rejection of the request for grant of time is perfectly valid. As far as the first aspect which was projected by the petitioner's learned Advocate is concerned, I need to only observe that the position is well-settled in law, an earlier challenge was presented to this Court by a series of Advocates who principally contended that there were several operational difficulties in the using and wearing of helmets and this Court while deciding K.Veeresh Babu v Union of India and companion matters, dated 29th September, 1993 went into all relevant aspects of the matter including the expert opinion on the point from specialists in the field right upto doctors and held that the rule is well intentioned and that irrespective of whatever inconveniences it may cause that it will have to be given effect to. Despite that decision, I am amazed at the manner in which the then Hon'ble Minister of the State Government took the decision andimplemented it and it is only hoped that such conduct is never repeated. The consequences have been disastrous, valuable lives have been lost, families have been ruined, economic damage has been massive and to my mind it is absolutely imperative that immediate corrective action must be taken. I need to add that there may be many pious reasons that are put forward including the fact that the wearing of helmets is inconvenient including the fact that in a hot country it may be oppressive but the bottom line of the equation is that in matters of safety there shall not be and there cannot be any compromises whatsoever. It is for this reason that the order or communication from the Government Annexure-A to the petition is quashed and set aside. Rule 230 shall be given effect to with immediate effect de hors the proviso that has been struck down by this Court.

21. Having regard to the fact that the statistics indicate that the number of persons wearing helmets has gone down to 0.8%, it would be necessary that reasonable time should be granted for purposes of making it known to all concerned that stringent action will be taken against any person found riding a two wheeler without a helmet. It will be necessary to provide for some reasonable time for the newest two wheeler riders to procure their helmets but more importantly, it should be made known to them that they will be seriously dealt with if the helmet rule is not observed. For this purpose, the following directions are issued.-

(a) That the State Government shall forthwith communicate through a wireless message to all Superintendents of Police and Commissioners of Police that they shall through prominent press releases which shall be issued at intervals of one week each on at least 3 occasions bring it to the notice of the general public that every two wheeler rider which shall include the pillion rider shall be required to wear a helmet while travelling on the vehicle. It shall also be preferable to request the Doordarshan Authorities to bring it to the notice of the general public that this issue is for the safety and welfare of the persons concerned.

(b) The Traffic Police and the Police Authorities shall ensure that the helmet rule is enforced and since it is proposed to provide for some reasonable time in the case of persons who may come to know of the requirement after some time or who may require a little time in order to procure the requisite helmets, it is made clear that on and after 2nd October, 1997, that the Police Authorities shall ensure that every rider conforms to the rule or faces stiff penalties. This does not mean to say that efforts in this direction shall not be made even earlier.

22. The petition accordingly succeeds and stands disposed of. In the circumstances of the case, there shall be no order as to costs.