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Madhya Pradesh High Court · body

2008 DIGILAW 1369 (MP)

Gyan Prakash v. Union of India

2008-11-25

A.K.PATNAIK, AJIT SINGH

body2008
Judgement A. K. PATNAIK, C. J. :- This is an application filed by the respondent No. 6, Society of Indian Automobile Manufacturers, for grant of permission to direct the respondents to register motor cycles sold by manufacturers in the State of Madhya Pradesh. 2. The background facts leading to filing of this application are that Writ Petition No. 6969/2006 was filed as Public Interest Litigation by the petitioner stating that a number of road accidents leading to deaths has been taking place in recent years in India calling for concerted and multi-disciplinary preventive and remedial measures. In paragraph 4.30.10 of the writ petition, the petitioner has alleged that for the death due to motor cycles, the State of Madhya Pradesh is responsible because the registering authorities have been registering the motor cycles in violation of the provisions of the Motor Vehicles Act, 1988 (for short 'the Act') and in particular Section 44 of the Act. In paragraph 5.15 of the writ petition, the petitioner has quoted Rule 123 of the Central Motor Vehicles Rules, 1989, (for short 'the CMV Rules') titled "Safety devices in motorcycle", which provides that no motor cycle which has provision for pillion rider, shall be constructed without provision for a permanent hand grip on the side or behind the driver's seat and a foot rest and a protective device covering not less than half of the rear wheel so as to prevent the clothes of a person sitting on the pillion from being entangled in the wheel. The petitioner has prayed inter-alia that registration of motor cycles in violation of Rule 123 of the CMV rules be immediately banned by the State of Madhya Pradesh. 3. On 6-3-2007 the petitioner filed I.A. No. 2186/2007 alleging that manufacturers are violating Rule 123 of the CMV Rules to promote sales, thus endangering the life of pillion riders inasmuch as they do not provide in motor-cycles hand-grips and protective devices to prevent entanglement of clothing/legs in the rear wheel. In the writ petition, the petitioner has further alleged that as a result of violation of Rule 123 of the CMV Rules, approximately 1000 young persons were being killed annually in Madhya Pradesh. In the writ petition, the petitioner has further alleged that as a result of violation of Rule 123 of the CMV Rules, approximately 1000 young persons were being killed annually in Madhya Pradesh. The petitioner accordingly prayed that the Court should immediately ban sale and registration of motor cycles which violates Rule 123 of the CMV rules in not providing the protective device covering not less half of the rear wheel and permanent hand-grip for the pillion rider and that the Court should direct the dealers to replace the motor cycles already sold. On 26-11-2007 the Court after considering the large number of accidents taking place because of non-compliance of the provisions of Rule 123 of the CMV Rules directed as an interim measure that no motor cycle, which does not comply with the requirements of Rule 123 of the CMV Rules, will be registered by the registering authorities in the State of Madhya Pradesh. 4. When the matter was taken up on 10-3-2008, the petitioner stated before the Court that the order dated 26-11-2007 has not been complied with and the Court directed the Transport Commissioner, Madhya Pradesh, to file an affidavit whether the order dated 26-11-2007 passed by the Court has been complied with and if so how. Pursuant to the order dated 10-3-2008, an affidavit of compliance was filed on 21-4-2008 stating that the Chief Secretary, Government of Madhya Pradesh had already directed on 20-12-2007 all the Regional Transport Officers, Additional Regional Transport Officers and District Transport Officers not to register any motor cycle until and unless the mandates of Rule 123 of the CMV Rules are complied with. On 28-4-2008 the Court directed the State of Madhya Pradesh to file an affidavit indicating the number of cases in which different Regional Transport Officers had refused registration of motor cycles for non-compliance of the provisions of Rule 123 of the CMV Rules. 5. Pursuant to the order dated 28-4-2008, the State of Madhya Pradesh filed an affidavit stating that the information as required by the Court has been called for from the Regional Transport Officers, Additional Regional Transport Officers and District Transport Officers. 5. Pursuant to the order dated 28-4-2008, the State of Madhya Pradesh filed an affidavit stating that the information as required by the Court has been called for from the Regional Transport Officers, Additional Regional Transport Officers and District Transport Officers. In the affidavit, the State of Madhya Pradesh, however, stated that registration of as many as 336 motor cycles had been refused by the Regional Transport Officers, Jabalpur during 24-12-2007 to 29-5-2008 and the details of the motor cycles which had been refused such registration were given in Document 'C' annexed to the affidavit. On 15-7-2008, the petitioner submitted before the Court that the statement in the affidavit filed by the State of Madhya Pradesh that as many as 336 motor cycles had been refused registration during 24-12-2007 to 29-5-2008 was not correct and that these motor cycles had actually been registered. The Court passed orders calling upon the learned Govt. Advocate to obtain instructions. 6. Thereafter, an affidavit was filed by the Regional Transport Officers, Jabalpur stating that initially registration of the motor cycles was refused but subsequently when the defects were made good, the motor cycles were registered. The petitioner, however, submitted that the safety devices mentioned in Rule 123 of the CMV Rules were to be provided by manufacturers and if such safety devices had defects, these manufacturing defects could not be made good and hence the motor cycles could not have been registered, if they were initially refused registration for non-compliance with the requirements of the Rule 123 of the CMV Rules. The Court passed orders on 24-7-2008 calling upon Shri R. R. Tripathi Officer Incharge of the case, who had filed the affidavit on behalf of the State of Madhya Pradesh to appear in person before the Court and show cause why contempt proceedings be not initiated against him. 7. The Court passed orders on 24-7-2008 calling upon Shri R. R. Tripathi Officer Incharge of the case, who had filed the affidavit on behalf of the State of Madhya Pradesh to appear in person before the Court and show cause why contempt proceedings be not initiated against him. 7. On 5-8-2008 the Court after hearing the petitioner and the learned counsel for the parties as well as Shri R. R. Tripathi directed that the 336 motor cycles listed in document 'C' annexed to the affidavit of Shri R.R. Tripathi filed in the Court on 3-7-2008 will be directed to be produced by the owners thereof by the Regional Transport Officers, Jabalpur, in his office and the Regional (Vigilance) of the High Court Shri Jayant Chavhan will inspect the motor cycles so produced in presence of the Regional Transport Officers, Jabalpur and submit a report whether the motor cycles comply with the requirement of Rule 123 of the CMV Rules. 8. Pursuant to the order dated 5-8-2008, the Registrar (Vigilance) inspected 146 motor-cycles which were produced before him for inspection. The remaining motor-cycles out of total 336 were not produced for inspection. The Registrar Vigilance has reported that the 146 motor-cycles in their manufacture do not comply with the requirements of Rule 123 of the CMV Rules. He has stated in his report : "Except an in-built folding foot rest, symmetrically, fitted on both the sides of each motor-cycle for use of pillion rider sitting astride, the other two safety devices, handgrip in hand-holds system and protective device at the rear wheel of the vehicle, have not been found manufactured with it. They, rather appear to have been subsequently fitted by way of accessories.........." 9. They, rather appear to have been subsequently fitted by way of accessories.........." 9. On 22-10-2008, the Court after hearing the petitioner and the learned counsel for the parties directed that copies of the inspection report of the Registrar (Vigilance) along with a copy of the order dated 22-10-2008 will be sent by the Registry of the High Court to the Transport Commissioner, Madhya Pradesh Gwalior who will circulate copies of the order dated 22-10-2008 of the Court as well as copies of the inspection report to all registering officers with the direction that no motor-cycle which does not comply with the requirements of Rule 123 of the CMV Rules will be registered by the Registering Officers in the State of Madhya Pradesh and in case any violation of this order is brought to the notice of the Court either by the petitioner or any other person, contempt proceedings will be initiated against the officers violating the order. By the order dated 22-10-20098, the Court also directed that respondents 6 and 7 will file their affidavits indicating their stand on the violation of Rule 123 of the CMV Rules by the manufacturers, as is evident from the inspection report of the Registrar (Vigilance), by the next date. 10. The respondents 6 and 7 have accordingly filed their respective affidavits on the inspection report of the Registrar (Vigilance) and relying on their affidavits, Mr. Vivek Tankha, learned Senior Counsel appearing for the respondent No. 6 submitted before us that Rule 126 of the CMV Rules provides for testing of the prototype of vehicle manufactured by any of the agencies mentioned therein including the Automotive Research Association of India, respondent No. 7, and for grant of a certificate by such agencies as to the compliance of the provisions of the Act and the CMV Rules. He submitted that every manufacturer of vehicle has to submit its vehicle for a prototype approval to one of these agencies mentioned in Rule 126 and only after the agency gives its approval, the vehicle can be registered by the Transport Authority. He submitted that prototypes of the motor-cycles manufactured by different manufacturers have thus been tested by these agencies and issued with certificates that the motor-cycles comply with provisions of the Act and the CMV Rules. He submitted that prototypes of the motor-cycles manufactured by different manufacturers have thus been tested by these agencies and issued with certificates that the motor-cycles comply with provisions of the Act and the CMV Rules. He further submitted that since these agencies have approved the prototypes of the motor-cycles manufactured by the manufacturers and furnished the required test certificates, the registering authority has to register the motor-cycles. 11. We are unable to accept this submission of Mr. Tankha, Section 44 of the Act is quoted herein below : "44. Production of vehicle at the time of registration - The registering authority shall before proceeding to register a motor vehicle or renew the certificate of registration in respect of a motor vehicle, other than a transport vehicle, require the person applying for registration of the vehicle or, as the case may be, for renewing the certificate of registration to produce the vehicle either before itself or such authority as the State Government may by order appoint in order that the registering authority may satisfy itself that the particulars contained in the application are true and that the vehicle complies with the requirements of this Act and of the rules made thereunder." It will be clear from the bare language of Section 44 of the Act that the registering authority before registering a motor-vehicle or renewing a certificate in respect of motor-vehicle may satisfy itself that the vehicle complies with the requirements of the Act and the Rules made thereunder. Thus, even where agencies mentioned in Rule 126 of the CMV Rules have tested the prototypes of the motor-cycles and have granted test certificates, the registering authority may refuse to register the motor cycle if it does not comply with the requirements of Rule 123 of the CMV Rules. 12. Rule 123 of the CMV Rules which provides what safety devices must be constructed in a motor cycle which has a provision for a pillion rider is quoted herein below : "123. 12. Rule 123 of the CMV Rules which provides what safety devices must be constructed in a motor cycle which has a provision for a pillion rider is quoted herein below : "123. Safety devices in motor cycle - No motor cycle which has provision for pillion rider shall be constructed without provision for a permanent hand grip on the side or behind the driver's seat and a foot rest and a protective device covering not less than half of the rear wheel so as to prevent the clothes of the person sitting on the pillion from being entangled in the wheel : Provided that on and from 1st January, 2003, the pillion hand holds shall be governed by IS : 14495-1998 specifications, as may be amended from time to time." 13. The first safety requirement of a motor-cycle, which has a provision for a pillion rider, as mentioned in Rule 123 of the CMV Rules, quoted above, is that a permanent hand grip has to be fitted on the side or behind the driver's seat. The proviso to Rule 123, however states that on and from 1st January, 2003, the pillion hand holds shall be governed by IS : 14495-1998 specifications, as amended from time to time. The requirements of pillion hand-holds system as specified in IS : 14495-1998 have been extracted in the inspection report of the Registrar (Vigilance) and are as follows : "2. Requirements Where provision is made for carriage of a pillion, the vehicle shall be fitted with pillion hand-holds system, in the form of a strap or a hand-grip(s). The pillion handholds system shall be so fitted that it is convenient for the pillion rider to make use of it in his normal sitting position, irrespective of whether he is sitting side or cross-saddled." Hence, IS : 14495-1998 specifies that the pillion hand-holds system shall be so fitted that it is convenient for the pillion rider to make use of it in his normal sitting position, irrespective of whether he is sitting side or cross-saddled. 14. Mr. Tankha relying on the affidavits filed on behalf of the respondents 6 and 7, submitted that the hand-grip or the hand hold system for the pillion rider has been fitted at the back of the seat of the pillion rider and this is the most convenient place where the hand-grip should be fitted. 14. Mr. Tankha relying on the affidavits filed on behalf of the respondents 6 and 7, submitted that the hand-grip or the hand hold system for the pillion rider has been fitted at the back of the seat of the pillion rider and this is the most convenient place where the hand-grip should be fitted. He showed us photographs of some makes of motor-cycles to demonstrate how convenient it was to fit the hand-grip or hand-hold system at the back of the seat of the pillion rider. We cannot accept the submission of Mr. Tankha because Rule 123 of the C.M.V. Rules is clear that a permanent hand-grip for the pillion rider has to be fitted on the side or behind the driver's seat and not behind the seat of the pillion rider. IS : 14495-1998 also requires that the pillion hand-hold system shall be so fitted that it is convenient for the pillion rider to make use of it in his normal sitting position irrespective of whether he is sitting side or cross-saddled. Hand-grip or pillion hand-hold system at the back of the seat of the pillion rider may be convenient for pillion rider if he is sitting side behind the driver but will not at all be convenient for the pillion rider if he sits cross-saddled behind the driver and not every pillion rider sits side, rather many pillion riders sit cross-saddled. Thus, fitting hand-grip for the pillion rider behind the pillion rider's seat is in violation of both Rule 123 of the C.M.V. Rules as well as IS : 14495-1998. 15. The second and third safety devices mentioned in Rule 123 of the C.M.V. Rules are the foot rest and a protective device covering not less than half of the rear wheel so as to prevent the clothes of the person sitting as pillion rider from being entangled in the wheel. Since the pillion rider may sit cross saddled as mentioned in IS : 14495-1998, the foot rest and the protective device covering not less than half the rear wheel to prevent the clothes of the persons sitting on the pillion from being entangled in the wheel must be on each side of the rear wheel of the motor cycle. Since the pillion rider may sit cross saddled as mentioned in IS : 14495-1998, the foot rest and the protective device covering not less than half the rear wheel to prevent the clothes of the persons sitting on the pillion from being entangled in the wheel must be on each side of the rear wheel of the motor cycle. But in the affidavits filed on behalf of the respondents 6 and 7, it is stated that in India, which follows left hand drive system, pillion riders mount and dismount on the left side only and not the right side and also sit facing the left side on the pillion seat and for this reason, the protective device is given on the left side of the rear wheel. But the truth is that pillion riders not only sit facing the left but also sit cross-saddled as mentioned in the IS : 14495-1998. Hence, a foot rest and a protective device mentioned in Rule 123 of the C.M.V. Rules has to be on each side of the motor cycle. 16. For the aforesaid reasons, we reject the prayer made in LA. No. 10435 Of 2008 for directing the registering authorities in the State of M.P. to register motor-cycles. Instead, we direct that a copy of this order will be sent to the Transport Commissioner, Gwalior who will circulate copies of this order to all registering authorities in the State of M.P. and the registering authorities will register only those motor-cycles which comply with Rule 123 of the C.M.V. Rules as explained in this order. Order accordingly.