P S SOMAIAH Vs. DIRECTOR BANGALORE DIARY

JUDGEMENT

(1.) WE have heard the appellants' learned Counsel as also the respondents' learned Counsel in these group of appeals. At the very outset, it is necessary for us to indicate the righteous indignation of this Court with regard to the total and thoroughly illegal practice that is rampant on the roads in the State whereby throwing caution to the winds and with total disregard for the elementary concept of safety, any number of children are indiscriminately loaded on to two wheelers whether it is in front, in the arms or minor children of different ages as a result of which the provisions of Sec. 128 of the Motor Vehicles Act are breached and disregarded with total callousness. This Court has, times without number brought it to the notice of police and the Traffic Control Authorities that necessary steps be taken to enforce the provisions of Sec. 128 of the M. V. Act which reads as follows :

(2.) WHAT we need to reiterate is that a motorcycle or a motor-scooter or a moped conventionally answering to the description of two wheelers is permitted under the law to carry only two individuals regardless of the age or size of those persons. Secondly, the law postulates that the person other than the driver can only be carried in a position behind the driver and we need to remind the police and the traffic control authorities for the last time that it is totally and completely impermissible to permit the second person travelling on that vehicle to be in any other position. It has become the order of the day to permit children of different ages, not only very small children but sometimes children who are of the higher age and size, that the driver of the vehicle places the child infront of the driver in a standing or sitting position so much so that at times even the vision of the driver is obstructed. In the case of vehicles such as scooters some of the major operational devices such as the brake pedal are placed in front of the rider and if the child accidentally steps on it or if the rider is required to operate it suddenly and is obstructed because of the presence of the child, consequences could be very serious. In any event, the law totally prohibits the carriage of children in any position in front of the rider and this is an aspect which will have to be enforced rigorously if there is any concept of consideration for the lives and safety of the children concerned. The entire legislative intent behind incorporating this provision in Sec. 128 of the Act is directed towards incorporating the safety angle because apart from the aspect of the vision, the stability of the vehicle and the possibility of serious injury to the child are something which the law desires to eliminate. This is the reason why Sec. 128 of the Act postulates that the second passenger even if it is a child can only travel in a position behind the rider and secondly, that the passenger, irrespective of again of the age is only permitted to travel sitting on a proper seat securely fixed to the motor cycle behind the driver's seat with appropriate safety measures. Again, what we need to clarify here is that it has become customary on the roads in Karnataka to indulge in high level acrobatics, which would perhaps be more appropriate in a circus, again totally disregarding the basic element of safety consciousness and even if the manufacturer has provided a seat for an additional passenger, more than one person is often accommodated in this area. The Act postulates that only one other individual regardless of the age can occupy this seat and the customary practice of 3 adults or two adults and children or, as has happened in the present case one adult and 3 children and the like, is totally prohibited by law. The result of these breaches is obvious in so far as the stability of the vehicle is seriously affected and secondly, in the unfortunate eventuality of an accident taking place the number of injured or dead persons gets multiplied. In view of the persistent refusal on the part of the police authorities in the State to enforce the law, as far as the enforcement of this rule is concerned, we need to issue a clear warning to the Government that in the event of injuries and deaths occurring due to the breach of the law, if it is established that it is due to the negligence of the State authorities, that since the claimants would be disqualified from claiming compensation from the Insurance Companies, this Court will be required to consider making the State liable in appropriate cases. It is for this reason that we direct the Registrar General to forward a copy of this judgment to the Secretary to Government, Home Department, and Transport Department, with specific directions that the observations of this Court and the directions issued be strictly enforced, to start with, by seeing to it that these directions are adequately publicised and given effect to. Secondly, the Insurance Companies shall make it a point that in everyone of the Insurance policies issued in the case of two wheelers that a slip is prominently pasted the insurance policy bringing it to the notice of the insurer that in the event of any accident or any death or injury if the insurer is in breach of the provisions of the law that there will be a disqualification as far as the claiming of the compensation is concerned. It is very necessary that these steps be taken in order to put a full stop to the reckless practice of operating two wheelers in breach of the provisions of Sec. 128 of the Act.

(3.) WHAT has happened in the present set of appeals is illustrative of what this Court is referring to. The appellant in MVC. 552/1990 P. S. Somaiah is an insurance agent and on the date of the incident i. e. 20-9-1989 at about 8 a. m. in the morning he was proceeding from his house on his motor cycle bearing No. CAI. 7331 along with his two sons P. S. Muthanna, Kaveriappa @ Karthik and his daughter Namitha to drop them to the School. Bad enough he was riding the motor-cycle with 3 children seated behind him none of whom were very small, their ages being 11, 10 and 8 years respectively. The facts indicate that he was also driving at a relatively high speed and that in the course of the journey the motor-cycle dashed against a Maruti van coming from the opposite direction on Millers Road, again the point of impact being on the right side of the road and not the left side of the road, though we need to observe that the law with regard to the driving on the left side of the road apparently does not apply to persons operating two wheelers! Here again, in the interests of safety we need to direct the police and the Transport authorities to ensure that rigorous action is taken in respect of any case wherein the obnoxious practice of riding on the wrong side of the road is detected because this is one of the causes in for the most serious of accidents. As a result of the unfortunate impact the rider and the 3 children were thrown off the vehicle. The father Somaiah had over-taken the milk tanker belonging to the Bangalore Dairy which was close behind him and when the children were thrown off the motor-cycle and landed on the road there was hardly enough time for the driver of the milk tanker to stop the vehicle as a result which, a horrifying situation occurred whereby the daughter Namita was run over by the tanker and died on the spot. The father Somaiah had also sustained 3 fractures and though he was wearing a helmet because of his injuries he lost consciousness and he and the children were removed to the hospital. The son Karthik was badly injured, he was treated in the hospital for two days and he also died. It is only the other boy Muthanna who escaped with relatively minor injuries to his legs. It is relevant for us to mention here that in this case the police charge-sheeted the father Somaiah before the Criminal Court for offences punishable under Secs. 279, 338, and 304a, IPC and he in turn filed a private complaint against the drivers of the other two vehicles under similar charges. The record does not indicate as to what happened ultimately in this prosecutions but that is not of much consequence as far as the decision of these appeals are concerned.