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K Maheswari

Asst. Public Prosecutor, JAMMALAMADUGU (A.P)

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“LAW CAN NEVER BE ENFORCED UNLESS FEAR SUPPORTS THEM”’AN APPROACH OF SUPREME COURT IN ACCIDENT CASES

K.Maheswari, APP , MYD

The Supreme Court has recently animadverted about the rapid growth in accident cases vice versa inadequacy of penal system in our country. This is not the first occasion to hike up the present issue; the Supreme Court has in several occasions blow the legislature to gear up equivalent penal provisions to reduce accidents.

‘’Accident” though not defined in IPC but penal provision relating to accident in the Code the dominant ingredients are ‘’rashness’’ and ‘’negligence’’.

As Austin says “in case of negligence, a party performs not an act which he is obliged he breaks a positive duty ‘’.

Clark says ‘’ negligence is the omission to take such care as under circumstances it is the legal duty of a person to take’’.

The result of negligent and rashness act gobbling the whole life of human beings and as well as animals exhausted the healthy lives of human beings into hibernation. The crime detection agency, preventive agency prosecuting agency and judicial systems are debilitated with the frailty statutes.

Lord ships of Supreme Court in State of Punjab Vs. Saurabh Bakshi (1)expressed their affliction towards coetaneous inadequate laws as “Law can never be enforced unless fear supports them’’ further added ‘’ In a motor accident, when a number of people sustain injuries and a death occurs, it creates a stir in the society; sense of fear prevails all around. The negligence of one shatters the tranquillity of the Collective. When such an accident occurs, it has the effect potentiality of making victims in many a layer and creating a concavity in the social fabric. The agony and anguish of the affected persons, both direct and vicarious, can have nightmarish effect. It has its impact on the society and the impact is felt more when accidents take place quite often because of rash driving by drunken, negligent or, for that matter, adventurous drivers who have, in a way, no concern for others. Be it noted, grant of compensation under the provisions of the Motor Vehicles Act, 1988 is in a different sphere altogether. Grant of compensation under Section 357(3) CrPC with a direction that the same should be paid to the person who has suffered any loss or injury by reason of the act for which the accused has been sentenced has a different contour and the same is not to be regarded as a substitute in all circumstances for adequate sentence’’.
In a major step towards curbing road accidents, a Supreme Court has held in Rajaseekaran Vs. Union of India and others (2) ‘’ Road traffic accidents, therefore, have the potential of being one of the largest challenges to orderly human existence necessitating immediate and urgent intervention’’ while delivering judgement it appointed a committee headed by J. K.S. Radhakrishnan to monitor the measurements taken by the central and state governments to control accidents and to implement road safety laws .

The Court has to adopt another parameter, i.e., ‘reasonable care’ in determining the question of negligence or contributory negligence. The other principle that is pressed in aid by the courts in such cases is the doctrine of res ipsa loquitur. This doctrine serves two purposes – one that an accident may by its nature be more consistent with its being caused by negligence for which the opposite party is responsible than by any other causes and that in such a case, the mere fact of the accident is prima facie evidence of such negligence. Secondly, it is to avoid hardship in cases where the claimant is able to prove the accident but cannot prove how the accident occurred. The courts have also applied the principle of res ipsa loquitur in cases where no direct evidence was brought on record ( Ravi Kapur Vs. State of Rajasthan( 3)

Let us peruse the relevant penal provisions in existed Laws in our country. There are only three statutes which deal with accidents. Those are mentioned below

(i) Indian Penal Code, 1860
Sections 279, 304A, 336, 337, 338, IPC are deal with cases of road accidents AS FOLLOWS

Section 279: Rash driving or riding on a public way.—Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

Section 304: Causing death by negligence.—whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.]

Section 336: Act endangering life or personal safety of others. “Whoever does any act so rashly or negligently as to endanger human life or the personal safety of others shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to two hundred and fifty rupees, or with both.”

Section 337: Causing hurt by act endangering life or personal safety of others. “Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.”

Section 338: Causing grievous hurt by act endangering life or personal safety of others. “Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.”

(ii) Motor Vehicles Act, 1988

Section 179: Disobedience to orders of the competent authority, obstruction to discharge of official duty or refusal of information to the authority concerned can result in fine up to Rs. 500/.

Section 180: If a owner permits any unauthorised person to drive the vehicle without driving licence, the owner is liable for imprisonment upto 3 months or fine upto Rs. 1,000/or both.

Section 181: Driving without valid and proper driving licence can result in imprisonment upto 3 months or fine upto Rs. 500/or both.

Section 182: If a person who has been disqualified for holding or obtaining a driving licence either drives a motor vehicle or applies for or obtains a driving licence withholding the information regarding disqualification , the person can be imprisoned upto 3 months or punished with fine upto Rs. 500/or with both.

Section 182(a): Whoever alters the construction of the vehicle without prior approval of the competent authority shall be punishable with fine of Rs. 1,000/for the first offence and with a fine of Rs. 5,000/for any subsequent offence.

Section 183: i) If a driver of a motor vehicle contravenes the speed limit, he/she shall be punishable with fine up to Rs. 400/for the first offence and Rs. 500/for the subsequent offence.

ii) If the owner causes the driver to contravene the speed limit, he/she shall be punishable with fine up to Rs. 300/for the first offence and Rs. 500/for subsequent offence.

Section 184: Whoever drives a motor vehicle at a speed or in a manner which is dangerous to the public, having regard to all the circumstances of the case including nature, condition and use of the place where the vehicle is driven and the amount of traffic which actually is at the time or which might reasonably be expected to be in the place, shall be punishable for the first offence with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, and for any second or subsequent offence if committed within three years of the commission of a previous similar offence with imprisonment for a term which may extend to two years or with fine which may extend to two thousand rupees or with both. The driver can be arrested on the spot.

Section 185: Punishment for drunken driving is imprisonment up to 2 years or fine up to Rs. 3,000/-or both. The driver can be arrested on the spot.

Section 186: If a person drives a vehicle when mentally or physically unfit to drive, he/she shall be punishable for the first offence with fine up to Rs. 200/-and Rs. 500/-for subsequent offence.

Section 187: If a driver or a owner fails to report involvement of his/her vehicle in an accident and give the required information to the Police Officer concerned, he/she shall be punishable with imprisonment up to 3 months or fine up to Rs. 500/-or both in addition to the punishment for the accident, in case convicted. For the subsequent offence under this section, the imprisonment can be up to 6 months and fine amount up to Rs. 1,000/

Section 188: Whoever abets the commission of offence under Section 184, 185 and 186 shall be punishable for the same punishment as the accused himself / herself.

Section 189: Whoever without the written consent of the State Government permits or takes part in a race or trial of speed of any kind between motor vehicles in any public place shall be punishable with imprisonment for a term which may extend to one month or with a fine which may extend to five hundred rupees or with both.

Section 190: Punishment for violation of the standards prescribed in relation to road safety, control of noise and air pollution is fine amount up to Rs.1000/for the first offence and Rs. 2000/for the subsequent offence.

Section 192: Using a vehicle without registration can result in minimum fine amount of Rs. 2000/and maximum up to Rs. 5000/. For subsequent offence, the fine amount can be up to Rs. 10,000/with a minimum of Rs. 5000/-

The punishment is not applicable for vehicles used in an emergency for the conveyance of persons suffering from sickness or injuries or for the transportation of food or material to relieve distress or of medical supplies for a like purpose.

Section 192(a): Using vehicle in contravention of permit condition can result in fine up to Rs. 5000/but not less than Rs. 2000/for the first offence and imprisonment upto 1 year but not less than 3 months or with fine amount upto Rs. 10,000/but not less than Rs. 5000/or both for the subsequent offence.

Section 194: Driving vehicle exceeding permissible weight can result with a punishment of Rs. 2000/and an additional amount of Rs. 1,000/per tonne of excess load together with the liability to pay charges of offloading the excess load.

Section 196: Driving uninsured vehicle can result in punishment in imprisonment upto 3 months or fine up to Rs. 1000/or both.

Section 197: Whoever takes or drives away any motor vehicle without having either the consent of the owner thereof or other lawful authority shall be punishable with imprisonment which may extend to three months or with fine which may extend to five hundred rupees or with both.

Section 201: Whoever keeps a disabled vehicle on any public place in such a manner so as to cause impediment to the free flow of traffic, shall be liable for penalty up to fifty rupees per hour so long as it remains in that position.
(iii) The National Highways Act, 1956

Section 8B: Punishment for mischief by injury to national highway.—Whoever commits mischief by doing any act which renders or which he knows to be likely to render any national highway referred to in sub-section (1) of section 8A impassable or less safe for travelling or conveying property, shall be punished with imprisonment of either description for a term which may extend to five years, or with a fine, or with both.

Though the above laws might not meet the ends to meet the ends of justice in disposing the accident cases, the Apex Court being guardian of fundamental rights of citizens of India having the power of interpretation has emerged the community service, reformative and rehabilitation approach. In State Tr.P.S.Lodhi Colony,New … vs Sanjeev Nanda (4) para 60 “Convicts in various countries, now, voluntarily come forward to serve the community, especially in crimes relating to motor vehicles. Graver the crime greater the sentence. But, serving the society actually is not a punishment in the real sense where the convicts pay back to the community which he owes. Conduct of the convicts will not only be appreciated by the community, it will also give a lot of solace to him, especially in a case where because of one’s action and inaction, human lives have been lost. In the facts and circumstances of the case, where six human lives were lost, we feel, to adopt this method would be good for the society rather than incarcerating the convict further in jail. Further sentence of fine also would compensate at least some of the victims of such road accidents who have died, especially in hit and run cases where the owner or driver cannot be traced.

The Supreme Court while disposing Public Interest litigation in NGO Save Life Foundation on 30-3-2016 has issued guidelines as to avoid harassment by police against good Samaritans in order to encourage them in protecting the accident victims. In view of the above decisions and guidelines if the Apex Court, the central govt has brought drastic changes in MV act by acrid penal provisions in the year 2016.

 

1. State of Punjab Vs. Saurabh Bakshi ( SC Dated 30-3-2015 )

2. WP 295/ 2012 Dated 22-4-2014

3. CRL.APPEAL NO 7838 of 2009 Dated 16-8-2016

4. CRL.APPEAL NO 1168 / 2012 Dated 3-08-2012

K.MAHESWARI

 


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