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2003 DIGILAW 505 (KER)

K. Narayanan Nair v. State of Kerala

2003-08-07

A.K.BASHEER, J.B.KOSHY, JAWAHAR LAL GUPTA

body2003
Judgment :- Jawahar Lal Gupta, C.J. (Oral) Is the State bound to enforce the mandate of Sec. 129 of the Motor Vehicles Act, 1988 that "every person driving or riding on a motor cycle shall, while in a public place, wear protective headgear"? This question was answered in the affirmative by Koshy J. in.O.P.No. 17480 of 1998. The decision was challenged in W.A.No. 1980 of 1999 on the ground that by Act 54 of 1994, S.129 had been amended to provide that the headgear should conform "to the standards of the Bureau of Indian Standards." The appeal was allowed as "the change made to S.129," had not been noticed. However, in this petition, it has been pointed out that factually there is no difference in ISI and BIS marks. In view of the public importance of the issue, the matter has been referred to this Bench. 2. The petitioner is an unfortunate parent. On February 9, 2000, his son Ranjit, a young man of 26 years, was riding a motorcycle. It hit against an electric pole on the highway. He suffered a serious head injury. It meant an instant end. The petitioner lost his only child. He complains that the State and its officers had failed to perform their duty. He laments - if the drivers and riders had been forced to wear helmets, the accident might not have proved fatal. His son might have survived. He prays that a writ of mandamus be issued directing the State and its officers to enforce Section 129 of the Act. 3. In the counter affidavit filed on behalf of the respondents, the mandate of law is not disputed. The necessity of "wearing of protective head gear has been recognized." In view of the increase in the number of accidents, the need for 'stringent steps' is acknowledged. It has, however, been pointed out that the second proviso enables the Government "to provide for such exceptions as it may think fit." In the exercise of this power, the State Government had issued a Notification on January 27,2000 inviting objections and suggestions regarding its proposal to grant exemption to "any person riding on a two wheeler other than the dreiver thereof." The allegation that the Government has shown apathy, indifference or reluctance in enforcing Section 129 has been described as 'absolutely incorrect." It has been "stoutly denied." 4. Learned Counsel for the parties have been heard. On behalf of the petitioner, Mr. S.Parameswaran has contended that the State is bound to enforce the provision of law as contained in S.129. On the other hand, Mr.Roy Chacko submits that the respondents have not acted in violation of any law. 5. The 1939 Act was replaced by the Motor Vehicles Act, 1988 to take care of the 'fast increasing number' of vehicles; 'adoption of higher technology'; the free 'flow of passenger and freight with the least impediments'; the 'concern for road safety statndards' and other similar reasons. The Act of 1988 lays down 'stricter procedures relating to the grant of driving licences and the period of validity thereof.' It lays down 'standards for the components and parts of motor vehicles' and the issue of 'fitness certificates.' The apparent legislative intent is to keep pace with the progress. The dominant purpose is to make driving and roads safe for the drivers and riders. 6. Chapter VIII of the Act provides for control of traffic, specification of parking places, driving regulations, duty to obey traffic signs, provision for signals and signaling devices, etc. All these measures are calculated to make driving easy and the roads safer. The purpose is to ensure safety of the person and property. The provisions promote public interest. These have to be followed by every driver. The default carries penalty. The provisions have to be followed by the people and enforced by the State. 7. Section 129 of the Act is one of the safety measures provided by the Parliament. In fact, Sections 128 and 129 regulate the use of two wheelers. Section 128 inter-alia provides-"no driver of a two-wheeled motorcycle shall carry more than one person in addition to himself." The apparent intention is to avoid the consequences of over-loading. Under Section 129, every person 'driving or riding' a motorcycle has to wear a protective headgear. The mandate of the provision is clear and categoric. It is true that the second proviso permits the State to make rules and provide for certain exceptions. The indication in this behalf is also available in the first proviso. Factually, the state had a proposal to exempt the 'rider.' However, it is not shown to have been finalized. The mandate of the provision is clear and categoric. It is true that the second proviso permits the State to make rules and provide for certain exceptions. The indication in this behalf is also available in the first proviso. Factually, the state had a proposal to exempt the 'rider.' However, it is not shown to have been finalized. So far as the present case is concerned, it is the admitted position that the state has framed a positive rule, which makes it mandatory for the driver as well as the pillion rider to wear protective headgear. This provision is contained in Rule 347 of the Motor Vehicles Rules. It reads as under. "347. Protective head gear: - The head gear to be worn by any person driving or riding on, a motor cycle shall be of the ISI standards." 8. A perusal of the above provision shows that the Act and the Rule require the 'driver' as well the 'rider' of a motorcycle to wear a protective headgear. It should conform to the ISI standards. The mandate is binding on everyone. The obligation is of the citizen. In case of default, the state has the power to impose the penalty. 9. There is a clear rationale for the requirement. Human bones are brittle. These can break easily. The skull is a sensitive part of the anatomy. It needs to be secured. A protective headgear is essential to protect the head. It is not merely a part of the space suit that the astronaut wears on the voyage in the outer space. The law makes it incumbent even for those who move on motorcycles or scooters etc. in public places. 10. Mr. Chacko submits that carrying a helmet is cumbersome. Sometimes, even the 'helmet' itself can cause injury. Reference was made to a newspaper report. 11. The petitioner has placed material on record to show that the number of fatal accidents is rising. Each accident is a tragedy for the family. It has implications for the society as well. The amount of compensation and the cost of treatment are clear economic factors. It is a matter of concern for all. It is true that carrying extra weight on the head or in hand cannot be convenient. Yet, mere inconvenience cannot be a good ground to ignore the advantage or the mandate of law. The amount of compensation and the cost of treatment are clear economic factors. It is a matter of concern for all. It is true that carrying extra weight on the head or in hand cannot be convenient. Yet, mere inconvenience cannot be a good ground to ignore the advantage or the mandate of law. We need to realize that it is better to wear the helmet than to hurt the head. 12. In recent years, the society has seen the strides of science. Technology has brought about tremendous transformation. Speed has become the secret of success. But speed, if unchecked, can be suicidal. In any case, it carries a duty to take care. And we find no ground for the fear that even helmet can cause hurt. One swallow does not make a summer. A rare instance as reported in a paper cannot be a ground for rejection. Surely, helmets are being used all over the world. In all kinds off weather. Even by the cricketers and the cyclists. The need in the case of motorcyclists is even more. The petitioner has placed material on record to show that proper shape and standards have been laid down. The industry has to comply with the prescribed norms. And then, research is a continuing process. The design etc. can always be taken care of. Even weather conditions can be catered for. Other problems can also be resolved. For example: It should not be difficult to provide a hook to hang the helmet on the handle or anywhere else. There can also be a provision for a lock with it. 13. Mr. Parameswaran submits that the state having failed to perform its duty, the petitioner is entitled to the payment of damages. 14. It is true that the powers of the writ court are wide. It has a duty to reach injustice anywhere. In suitable cases, the court has even awarded compensation. In case of custodial deaths or any other suitable case, the court may exercise its discretion and help the helpless to tide over the crises. But as a rule, the award of damages would require recording of evidence. Various other factors shall have to be taken into consideration. In the facts and circumstances of this case, we do not find it appropriate to go into the question for damages in a writ petition. But as a rule, the award of damages would require recording of evidence. Various other factors shall have to be taken into consideration. In the facts and circumstances of this case, we do not find it appropriate to go into the question for damages in a writ petition. The petitioner may, if so advised, seek his remedy before the civil court. 15. No other point has been raised. 16. The provision of the Act and the Rule being clear, the State is under an obligation to ensure its compliance. The defaulters are liable to be punished. Mr. Roy Chacko has assured us that the provisions shall be enforced. As at present, the rule provides for no exception. Thus, it is directed that the respondents shall enforce the provision immediately. Instructions shall be issued. The persons concerned shall be given a reasonable time to arrange for protective headgear, say four weeks. Thereafter, the defaulters shall be dealt with according to law. The writ petition is disposed of in the above terms. No costs.