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The Kerala Auto Two Wheelers … vs S.S. Sathjith And Ors. on 25 January, 2000

Kerala High Court
The Kerala Auto Two Wheelers … vs S.S. Sathjith And Ors. on 25 January, 2000
Equivalent citations: I (2000) ACC 478, AIR 2000 Ker 118
Author: A Lakshmanan
Bench: A Lakshmanan, S Sankarasubban


JUDGMENT

AR. Lakshmanan, J.

1. The Kerala Auto Two Wheelers Association, represented by its Secretary, who obtained leave in C.M.P. No. 5037 of 1999 to file appeal against the Judgment in O.P. No. 17480 of 1998 dated 12-7-1999 is the appellant in this appeal. The first respondent is the petitioner in that original petition. The second respondent is the State of Kerala represented by its Chief Secretary and the third respondent is the Director General of Police. Trivandrum. The first respondent is a practising lawyer-belonging to the Cherthala Bar Association. He filed the writ petition for a mandamus directing the respondents to implement Sections 128 and 129 of the Motor Vehicles Act (59 of 1988) strictly throughout the State of Kerala and further direct the respondents to take appropriate action against the police officials in case they do not implement these provisions meticulously and efficiently.

2. The writ petition has been filed by the petitioner for implementing Sections 128 and 129 of the Motor Vehicles Act, 1988. In the writ petition Sections 128 and 129 of the Act have been extracted at page 2 of the original petition. Sections 128 and 129 as referred to in the writ petition are reproduced hereunder :

“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-section (1) the Central Government may prescribe other safety measures for the Drivers of two wheeled motor cycles and pillion riders thereon.

129. Wearing of protective head gear :

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.”

The whole case of the petitioner proceeds on the basis of Sections 128 and 129 which have been extracted above. Unfortunately the petitioner and his counsel have not noticed the amendment to Section 129 of the Motor Vehicles Act. The petitioner has not noticed the legislative change made to Section 129. By Section 38 of Act 54 of 1994 dated 14-11-1994, the first paragraph of Section 129 was substituted for “a protective headgear of such description as may be specified by the State Government by rules made by it in this behalf, and different descriptions of headgears may be specified in such rules in relation to different circumstances or different class or description of motor cycles”.

3. We shall now reproduce the amended Section 129 :

“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 protective headgear conforming to the standards of Bureau of Indian Standards :

Provided that the provisions of this section shall not apply to a person 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 as it may think fit.”

A reading of the present section provides

for wearing protective headgear conforming to the standards of Bureau of Indian Standards. Neither counsel for the petitioner nor counsel for the respondents or the State are in a position to place before us any material in regard to the standards prescribed by the Bureau of Indian Standards in regard to the protective headgears.

4. In the writ petition a counter-affidavit was filed by Sr. B. S. Sastry, the Director General of Police, Kerala. Even in the counter-affidavit there is reference only to the unamended sections. Even according to the Director General of Police not many helmets with ISI specifications were in existence in 1992-93 and that there is also no provision for keeping the helmets after parking on the vehicle itself under lock and key. The climatic conditions of Kerala with high humidity and frequent rain also makes the use of helmets a little difficult. Reference was also made to the use of helmet in Metropolitan Cities like Delhi, Bombay, Calcutta and Madras and that a study of Prof. Dinesh Mohan on Assessment of Road Traffic Injuries in Delhi indicates even in Delhi only 38% of the riders had their helmets on. Because in Delhi only drivers are required to use their helmets and passengers are not required to wear helmets. Other difficulties experienced by the State in enforcing Section 129 have also been stated. In the concluding portion the Director General of Police stated that there is no gain saying the fact that the use of helmets will reduce the Incidence of fatalities in road accidents involving two wheelers and that a time bound programme drawing up a campaign of education, provision of parking lots, and making available the required number of ISI helmets, followed by enforcement will be desirable and necessary.

5. The writ petition was disposed of by a learned single Judge of this Court. The learned Judge, after extracting the unamended Sections 128 and 129 of the Motor Vehicles Act, proceeded to consider the case in the background of the above sections and came to the conclusion that the legislature has framed the enactment after considering the various circumstances and that the elected representatives of the people have considered the matter and passed the law and therefore the Executive cannot say that the Acts of Parliament duly passed by the Parliament will not be implemented. The

learned Judge also held that the predominant object incorporating this provision (unamended) is to avoid head injury and even though it may be inconvenient to wear helmet, wearing of helmet will give protection to drivers and pillion riders of two wheeled motor cycles. In the above circumstances, the learned Judge directed the State of Kerala and the Director General of Police to see that Section 129 of the Motor Vehicles Act is strictly implemented and that they should issue Circulars to the said effect and also give wide publicity to this matter. The learned Judge felt that the non-implementation of the provisions of the Act passed by the Parliament will be an offence. The learned Judge has also directed the two wheeler riders to fully co-operate for the implementation of the provision. In the circumstances the learned Judge allowed O.P. No. 17480 of 1998 and dismissed O.P. No. 5245 of 1993 which was filed for a direction to forbear the respondents from implementing Section 129 as in the unamended form.

6. The respondents in O.P. No. 17480 of 1998 have not filed any appeal. However, the Kerala Auto Two Wheelers Association filed this writ appeal after obtaining leave from this Court in C.M.P. No. 5037 of 1999.

7. The writ appeal was admitted on 20th September, 1999 by this Bench. On the same day we issued the following directions :

“Admit Notice. The Commissioner of Police, Ernakulam is directed to file a report regarding the availability in the market, of protective headgears conforming to the standards of Bureau of Indian Standards.”

In this writ appeal we are only concerned with Section 129 of the Motor Vehicles Act. At the time of arguments Mr. K. Ramakumar, learned counsel appearing for the appellant Association invited our attention to a grave error committed by the learned counsel for the petitioner. He invited our attention to the averments made in the writ petition and also certain passages in the judgment. In the writ petition counsel for the petitioner has only extracted the unamended Section 129. The respondents, the Director General of Police and the Chief Secretary of the State have also not brought to the notice of the learned Judge about the legislative changes that has taken place as early as on 14-11-1994 by Section 38 of Act 54 of 1994 substituting the first paragraph of Section 129. Under the old

Section 129 every person driving or riding shall, while in a public place, wear a protective headgear of such description may be specified by the State Government by rules made by it in this behalf and different descriptions of headgears may be specified in such rules in relation to different circumstances or different class or description of motor cycles. In the amended Section 129 every person driving or riding shall, while in a public place, wear protective headgear conforming to the standards of Bureau of Indian Standards. There is no change in the first proviso of Section 129. The third proviso of the amended section gives authority to provide for such exceptions as it may think fit. We are not concerned in this case about the other parts of the section. Counsel who filed the petition, had not brought to the notice of the learned Judge about the legislative changes that has been made in November 1994 itself. The direction now issued by the learned single Judge under the impugned judgment will amount to enforcing of Rule 347 of the Kerala Motor Vehicles Rules, which reads thus :

“347. Protective head gear: The headgear to be worn by any person driving or riding on, a motor cycle shall be of the ISI standards.”

This rule, in our opinion, cannot be enforced in view of the amended Section 129. The State Government is now bound to follow the specification laid down by the Bureau of Indian Standards for protective headgears.

8. Since the entire case was filed and prosecuted and decided without noticing the changes made to Section 129 of the Motor Vehicles Act, we have no other option except to interfere with the judgment of the learned single Judge. We therefore, allow the writ appeal, set aside the judgment in O.P.No. 17480 of 1998 dated 12-7-1999. We also reserve liberty to the petitioner in the original petition to file a properly framed original petition and in the light of the provisions now in force and pursue the same in accordance with law. The dismissal of the writ petition will not stand in the way of the Government in enforcing the standards prescribed by the Bureau of Indian Standards as envisaged under Section 129 of the Motor Vehicles Act, which is now in force.

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