State of Kerala Vs.
E.T. Rose Lynd & Ors.
[Civil Appellate
Jurisdiction Civil Appeal No. 2229 of 2012 arising out of S.L.P. (Civil) No.
12480 of 2009]
J U D G M E N T
R.M. LODHA , J.
1.
Leave
granted.
2.
The
State of Kerala through its Chief Secretary is in appeal, by special leave, aggrieved
by certain directions given by the High Court of Kerala in its order dated
September 17, 2008.
3.
A
certain P.C. Krishnakumar was travelling on the pillion of a motorcycle bearing
registration No. KRH- 7599 which was ridden by Thomas John (respondent No. 2 herein)
along Koimbatore-Palakkadu National Highway (East to West). On reaching Puthusserichellakkadu,
the motorcycle dashed against the rear side of a stationary lorry which was parked
at the national highway.
The parking lights of
the stationary lorry were not switched on and as a result of the 2 impact Krishnakumar
sustained serious injuries and he succumbed to those injuries on way to Palakkadu
District Hospital. Legal heirs of the deceased Krishnakumar, who are respondent
Nos. 3 to 5 herein, filed a claim petition before the Motor Accidents Claims Tribunal,
Attingal (for short, 'the Tribunal') seeking compensation for the accidental death
of Krishnakumar. In the claim petition, they alleged that the accident occurred
due to the composite negligence of the owner, driver and insurer (respondents
Nos. 8, 9 and 10 herein) of the truck as well as the respondent No. 2 who was
riding the motorcycle.
4.
The
Tribunal, on consideration of the evidence on record, passed an award on June
3, 2002 in the sum of Rs. 4,76,500/- with interest at 9% per annum from November
8, 1997 till relisation in favour of the claimants. The liability was
apportioned in the award as the accident was found to have occurred due to composite
negligence of the two vehicles. The details of the liability are not relevant.
5.
Aggrieved
by the award, the present respondent Nos. 1 and 2 (owner and rider of the
motorcycle) preferred appeal before the High Court of Kerala. The High Court
proposed to issue some general directions to the State of Kerala and, accordingly,
directed its impleadment through its Chief Secretary as respondent No. 9 in the
appeal. The Division Bench of the High Court, on hearing the parties, issued
the following general directions in its order dated September 17, 2008 :-
i.
"We
direct the Government to issue instruction to the Police particularly handling Traffic
and the Motor Vehicles Department to seize and remove vehicles seen parked on National
Highways, State Highways and other important roads, whether during day time or
during night, and release such vehicles only on collecting heavy fine in
accordance with law besides prosecuting the drivers.
ii.
The
Government should direct Police and Motor Vehicles Department to ensure that goods
vehicles particularly, container lorries with unusual dimensions are operated on
road with proper indicator lights, reflectors, etc. on all sides during day time
and night so that drivers of other vehicles get an idea about the size and
dimension of such vehicles and the care they have to take to avoid accidents. In
fact, having regard to the unusual size of container trucks, the Government should
consider roads in which they can be permitted to operate and narrow single line
roads where they should not be permitted and orders should be issued and
enforced restricting their movement.
iii.
Large
number of accidents take place on account of stopping/parking of stage carriages
on road for taking and releasing passengers. This should be prohibited by constructing
Bus Bays in Bus stops so that stage carriages go out of the road and take passengers
and release them only on bus bays without affecting road traffic. Since this requires
time, and expenditure, we direct the Government to take steps at the earliest and
complete construction of Bus Bays on all road-sides in the State through which stage
carriage operation is permitted, within one year from now.
iv.
Since
accidents commonly take place in road crossings, there will be direction to the
Government to instruct PWD and local authorities in charge of the road, to construct
hump with zeebra marking on the less important roads on all road crossings and
also provide sign boards wherever required under the Rules, which should also be
done within a period of one year from now.
v.
Since
parking of vehicles on road is prohibited by the Rules, the enforcement of which
is directed above, there will be direction to the Government to provide sufficient
parking space for vehicles on road side, if required by acquiring land, which should
also be done within a time frame, even though we do not fix any specific time
for this."
6.
While
giving the above directions, the High Court further observed that in order to ensure
the compliance, Registry shall post the matter every three months for the
Government to report periodical steps taken for compliance. The first report of
the Government was required to be filed by January 1, 2009.
7.
The
State of Kerala is aggrieved by the directions 3 and 5 quoted above. By
direction 3, the High Court has directed the State Government to take steps for
construction of Bus Bays on all road-sides in the State through which stage
carriage operation is permitted within one year from the date of the order. By
direction 5, the State Government has been directed to provide sufficient parking
space for vehicles on road side, if required by acquiring land, which should also
be done within a time frame, although no time frame was fixed by the Court.
8.
The
High Court heavily relied upon Section 118 of the Motor Vehicles Act, 1988 (for
short, 'the Act') and Rule 15(2)(iv) of the Rules of the Road Regulations, 1989
(for short, '1989 Regulations') prescribed by the Central Government.
9.
Section
118 of the Act enables the Central Government to make regulations for the driving
of motor vehicles by issuing notification in the Official Gazette. Pursuant to its
power under Section 118 of the Act, the Central Government has prescribed the 1989
Regulations. Para 15 of these Regulations deals with the parking of the vehicle.
Sub-para (1) of Para
15 provides that every driver of a motor vehicle parking on any road shall park
in such a way that it does not cause or is not likely to cause danger, obstruction
or undue inconvenience to other road users and if the manner of parking is
indicated by any sign board or markings on the road side, the driver is required
to park his vehicle accordingly. Sub-para (2) of Para 15 is a prohibitory
provision whereby a driver of a motor vehicle is prohibited not to park his
vehicle at the places set out in clauses (i) to (xi). The High Court relied
upon clause (iv) which provides that a driver of a motor vehicle shall not park
his vehicle in a main road or one carrying fast traffic.
10.
We
are afraid, the directions given by the High Court, particularly directions 3 and
5 with which the Government of Kerala is aggrieved, could not have been issued.
First, the provisions aforenoted upon which the High Court placed reliance
hardly justified the above directions. Second, the High Court was hearing an
appeal from an award that was confined to the grievances raised by the
aggrieved party. Such general directions of wide ramifications ought not to
have been given in such proceeding.
Third, the facts which
are relevant and germane for issuance of such directions were not before the
Court. The observations by the Court, 'most of the container trucks seen on
road are not fitted with proper indicators and the containers with their dull
colours may not be visible from distance, more so in the night', 'similar
accidents of the kind stated above are reported in this State on regular basis when
vehicles driven in the night hit behind vehicles remaining parked on road' and 'inspite
of repeated accidents, no steps are seen taken by the Police or Motor Vehicle
authorities to seize or remove such parked vehicles from roads which can prevent
accidents' are founded on general impressions.
No material is available
on record to support such observations. Howsoever well meaning the directions may
be, yet in the absence of complete facts and materials, the exercise undertaken
by the High Court was uncalled for and not necessary. Fourth, as regards
directions 3 and 5, we find that certain aspects which were needed to be adverted
to have not at all been adverted to by the High Court.
It was important to have
regard to the aspect, whether it was at all feasible to construct the Bus Bays
and make the roads double lane or four lane when these roads pass through major
cities, towns and thickly populated areas. The financial aspect viz., the cost of
land acquisition and the cost of construction of Bus Bays throughout the State's
National Highways and other roads was also required to be kept in mind. None of
these aspects has been examined by the High Court.
11.
Mr.
Ramesh Babu M.R. learned counsel for the appellant - State of Kerala, submits that
the State Government has accepted directions 1, 2 and 4 and implemented the
same although a ground has been taken that such directions ought not to have
been issued. In view of this, we do not intend to say anything about directions
1, 2 and 4.
12.
In
view of the above, we are satisfied that directions 3 and 5 suffer from serious
flaw and cannot be sustained. We set aside directions 3 and 5 accordingly.
13.
The
Appeal is allowed to the extent above with no order as to costs.
........................J.
(R.M. LODHA)
........................J.
(H.L. GOKHALE)
NEW
DELHI;
FEBRUARY
22, 2012
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