State Of Kerala vs E.T.Rose Lynd & Ors

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2229 OF 2012 (arising out of S.L.P. (Civil) No. 12480 of 2009)

STATE OF KERALA Appellant(s)

VERSUS

E.T.ROSE LYND & ORS. Respondent(s)

J U D G M E N T

R.M. LODHA , J.

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

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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

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following general directions in its order dated September

17, 2008 :-

"1) 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.

2) 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.

3) 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.

4 4) 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.

5) 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

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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.

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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

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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.

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........................J. (R.M. LODHA)

NEW DELHI; ..........................J. FEBRUARY 22, 2012 (H.L. GOKHALE)