SATHJITH Vs. STATE OF KERALA

JUDGEMENT

(1.) THESE two Original Petitions relate to implementation of ss. 128 and 129 of the Motor Vehicles Act, 1988. Therefore, they are disposed of together. S. 128 of the Motor Vehicles Act reads as follows: "128. Safety measures for drivers and pillion riders : (1) No driver of two wheeled motor cycle shall carry more than one person in addition to himself on the motor cycle and no such person shall be carried otherwise than sitting on a proper seat securely fixed to the motor Cycle behind the driver's seat with appropriate safety measures; (2) In addition to the safety measures mentioned in sub-s. (1)the Central Government may prescribe other safety measures for the driver of two wheeled motor cycles and pillion riders thereon". Section 129 of the Motor Vehicles Act reads as follows : "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 a protective head gear of such description as may be specified by the State Government by rules made by it in this behalf, and different descriptions of head gears may be specified in such rules in relation to different circumstances or different class or description of motor cycle; Provided that the provisions of this Section shall not apply to aperson 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 is it may think fit. Explanation:- "protective Headgear" means a helmet which (a) by virtue of its shape, material and construction, could reasonably be expected to afford to the person driving or riding on a motor cycle degree of protection from injury in the event of an accident; and (b) is securely fastened to the head of the wearer by means of straps or other fastening provided in the head gear". O. P. No. 5245 of 1993 is filed for a direction to forbear the respondents from implementing S. 129 as the above provisions are violative of Art. 19 of the Constitution of India. It is stated that it is filed by a citizen based on public interest and on behalf of all two wheeler drivers and pillion riders. O. P. No. 17480of 1998 is filed for the issuance of a madams to the respondents to implement S. 128 and 129 of the Motor Vehicles Act According to the petitioner in O. P. No. 17480 of 1998, in majority of two wheeler motor cycle accidents death is caused due to head injury. Inspite of the representations provisions are not implemented. The safety of the citizen has to be kept in tact by the State and State has duty to implement the above provisions. This petition was filed by a public spirit citizen who is an advocate by profession. Immediate provocation for filing this petition is, it is stated, the traffic death of his neighbour by head injury due to scooter accident, which according to medical opinion could have been avoided by wearing a helmet.

(2.) IN O. P. No. 5245 of 1993 the State has taken a contention that the Parliament had considered the matter and in the interest of general public the above provisions were made. IN O. P. No. 17480 of 1998 the contention of the Government is that immediate implementation of the above provisions will cause difficulties and if Court orders they will be implemented.

(3.) ANOTHER complaint of the petitioner is regarding the corruption that may be committed by the Police officials. If the two wheeler riders observe the above rule there is no scope for such allegation. It is averred that in other countries such a rule is not in existence. But Government pleader submits that in all developed countries wearing of helmet by two wheelers is made compulsory. The law is made by the Parliament and not by authorities in Kerala State. Therefore allegation of malafide to help the helmet manufacturers cannot be alleged. So long as provisions of the Act are there, the authorities are bound to obey the same. It was pointed out that it will cause much inconvenience to ladies and pillion riders and in certain states pillion riders are exempted from this provision. Section itself authorises the State Government for granting exemption by rules. Therefore, if pillion riders or ladies or senior citizens or any class of citizens can make representation to the State Government to exempt and if such representations are received it shall be considered by the Government and pass such rules giving exemption considering the representations, as it may deem fit, without forgetting the underlying principle and object of legislation and mandates of art. 21 of the Constitution of India and also inconveniences and practical problems raised by them.