Licence To a Steering Wheel - A Licence To Kill?

(By V.P. Ramesan, Advocate, Ernakulam)

A man in the driving sent is now a days fully enlightened of the fact that there are ample loop-holes in the law for his escape if he causes the death of a person or persons by reason of his rash and negligent driving. So also a person who drives a vehicle with a motive to do away with a person is accessible to the coverage of S.304A of the Indian Penal Code and can shirk the risk of being prosecuted under S.302 of the Indian Penal Code. The death that occur when a vehicle meet:, with an accident is a death by accident and it cannot be termed as a death by culpable homicide or murder as per the existing law. It .has become quite usual now a days that the rash negligent driving is taking away human lives in bulk but the penal provision contained in S.304 A is not sufficient to have a deterrent effect on the accused. The driver of the stage carrier is so callous, careless, negligent and rash ignoring the human life's value and his plying in a flying manner so as to pacify his employer's greed for better collection for the day for which he will be fetching few perks more apart from his duly fixed wages. The owner of the stage carrier is so particular to see his collection increasing day by day even to the extent of violating traffic rules and the driver not acting to his whims and fancies will be dismissed immediately for his poor performance. The more the driver got involved in accidents is the best test for his dynamism and fitness for his appointment to the steering seat as for the owner.

The real villain behind a massive accident death due to a stage carrier is the driver abetted by his employer. The irony here is that both are not properly dealt with under law nor do there exist any effective law to deal with them properly. The driver who is accused of an offence punishable under S.304A can press into service the fact of mechanical disorder for the occurrence of the incident leading to massacre of innocent passengers and for want of evidence, the courts have no other go but to acquit him. If this be the fate with regard to the action against the accused on the criminal side, the abettor-owner is so safe at his home. The relevant provisions to the Motor Vehicles do not provide any delenent punishment. As regards the compensation proceedings before the Claims Tribunal, the Insurance Company is burdened alone even though there is provision for vicarious liability. There also, the abettor owner and the accused driver have a very easy vent. On a perusal of the yearly statistic of the road accidents, it can be seen that a passenger vehicle are involved on a larger scale, the reason for which is nothing but the greed of the owner that compels the driver to take the vehicle in a rash and negligent manner. The prevailing provisions of law in the Indian Penal Code and Motor Vehicles Act and the law governing compensation proceedings have an exonerating effect as for the killer driver and his abettor owner.

S.304A of the Indian Penal Code reads:- "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 both."

The offence described here falls under the category of "man slaughter" in English law which is principally distinguishable from murder though the act which occasions the death is unlawful or likely to be attended with bodily harm. This section was added to the Indian Penal Code by the Amending Act of 1870 (XXVII of 1870). The offences under S.304A of the Indian Penal Code is far distinct from relevant sections of the Motor Vehicles Act. The requirements under the section to book a person is that the death of any person must have been caused by the accused doing any rash or negligent act for which there must be proof to the effect that the rash and negligent act of the accused was the cause of the death and hence there must be direct nexus between the death and the act of the accused. If this be the requirement the principle embodying the section is that the offence is viewed with greater leniency even though the rash and negligent act of the accused causes death of a person. Thus where bodily injury is intentionally inflicted and the victim dies, the offence would be one of simple or grievous hurt if the intention or knowledge which is an ingredient of culpable homicide is wanting (AIR 1963 HP 18).

Considering the case laws on this section and the judicial interpretation of the section it appears that the accused cannot be punished for murder, culpable homicide and homicide by negligence. The reckless driving or driving in a manner dangerous to public life is rashness. The condition of the road and the amount of the traffic at the time, or which might reasonably be expected to be on the road are factors to be taken into consideration in assessing the rashness or negligence of the driver (1968 KLT 202). An offence under S. 304A of IPC can be committed either by doing a rash act or negligent act. The degree of the rashness and negligence on the part of the accused required to be proved in criminal cases should be in such a way so as to infer about the commission of the offence may be safely made against him. Any carelessness causing civil liability will not be enough for the purpose of establishing the offence under S.304A if the ingredients, principle and the interpretation seems like this, the prime accused in a motor accident is safe in all respects, even though he is committing man-slaughter.

Now what can be elucidated from the position of law on the point and the experience hitherto shows that the penal provision is inadequate and insufficient to deal with a situation where the driver is less concerned to the punishment he may be inflicted upon the event of his being found guilty and convicted. If a more severe penal provision is provided, the man in the driving seat will be more cautious and he will never steer the steering round in his hand so negligently and callously and will fear the consequence of a rash driving. So also, the abettor owner is implicated by enlarging the definition of the offence including the owner also, he may never ask his employee driver to ply the vehicle at the risk of the innocent passengers' lives.

When Mr. Devagowda was the Prime Minister, there was a move to amend the penal provisions of all laws applicable to a road accident where the occurrence of which is due to rash and negligent act causing man-slaughter. The proposal was to impose capital punishment on the accused in case the man-slaughter is caused by reason of his rash and negligent driving. Here also the accused driver can shrink liability by putting everything on mechanical trouble. An expert driver accused can put the total mechanism in trouble after the deed is done for the prevention of which adequate remedial measures have to be suggested by appointing a Law Commission to go into the matter with the assistance of technical experts in the field. This is highly essential since a country like ours, things can easily be manipulated in favour of and to the advantage of the accused. The fate of the proposal during the regime of Mr. Devagowda is not known yet. Perhaps it may be in the cold storage due to stiff resistance from the Members of the Parliament as they themselves will be put to trouble in case of the same coming into being as a law. Anyway that attempt was in the right direction having a bearing on the man-slaughter on the road by rash and negligent driving. No Government committed to ensure protection to life of a citizen cannot retreat from a venture of the kind that Devagowda Government did. It is high time for the Government in office to get the matter out of the cold storage and table a bill before the house ensuring necessary precautions and effective provisions to curb this menace that the modern society is confronted with. No one can catch a bus without the fear of being captured with an accident mainly due to the rash and negligent driving. The killer driver is so audacious to ply the vehicle so callously because of the dire fact he is loosing nothing in the event of an accident. If the Government is prepared to reshuffle and revamp the penal provision of the concerned laws and the law of Insurance by apportioning the liability among the owner, the driver and the Insurance company equally, the abettor-owner and the killer-driver will be constrained to think of the present modus operandi. It will have a positive effect not on the reduction of the accident but it will relieve the claim burden on the Insurance companies. A comprehensive reshuffling of the Insurance law on this aspect is highly warranted to burden the owner and the driver in a proceedings for compensation along with the Insurance Company.

What about the fate of the victims of the kith and kin if the victim traveling in a vehicle is without Insurance coverage? The victim in case of survival or the legal representatives in case of victim succumbing to injuries have no other go in the event of passing an award but to proceed against the assets of the respondents under Revenue Recovery Act and if the respondents are insolvent, the award becomes inexecutable rendering no relief to the affected. The Motor Vehicles Act/Rules envisages revenue recovery proceedings only and the provision of execution contained in the Code of Civil Procedure is not available to the holder of the award. This lacuna in execution proceedings may be cured by making necessary amendments in the relevant laws enabling the holder of an award to make use of the provisions of execution contained in the Code of Civil Procedure. What is contained in the Motor Vehicles Act/Rules for not insuring a vehicle is nothing but to register a petty case against the concerned and he will be punished only with a petty fine. To get over the above mentioned hurdles, Motor Vehicles Rules may be amended suitably so as to deal with the owner of uninsured vehicle on heavy terms. So also, the driver being the prime accused may be held liable to pay at least 25% of the award and in case of default rigorous imprisonment for ten years at least may be provided. The owner also may be burdened with like terms and the Insurance Company need only be burdened with 50% of the award. In the proceeding under S. 304A of IPC, experiences hitherto show that the accused get an honourable acquittal for want of evidence.

To constitute an offence under S.304A of IPC, the death of a person must have been caused by the accused doing an act in a rash and negligent manner. In "Empress of India v. Idu Beg" (1LR 3 All. 776) it has been observed as follows:-

"Criminal rashness is hazarding a dangerous or wonton act with the knowledge that it is so and that it may cause injury but without the intention to cause injury, or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences". Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen, it was the imperative duly of the accused person to have adopted.

The cardinal principle that may encourage an amendment to the penal provisions to S.304 of IPC, the relevant provisions of the insurance law and that of Motor Vehicles Act/Rules is the intention to prevent "mens rea " of human nature that may design and execute a gruesome murder by a road accident. Since the morale of the present day world is lowering to an astonishing but embarrassing level, the chances of misusing and taking advantage of the coverage and protection available under the relevant laws applicable to such a situation is high.

It may be appropriate to fix a minimum age limit for issuing a license, to ply heavy vehicles with a motive not to engage immature and inexperienced hands. In western countries especially in Germany grant of driving license is subject to the passing of an examination in first aid matters. In that case a driver plying a vehicle when meets with an accident will be capable of providing first aid to the victim.

Hence, on a total evaluation of state of things, there is a dire need to amend the relevant provisions of all enactments in the changed circumstances. Law should be to serve the purpose and to meet the necessity of the society and if the same found inadequate it is the duty of the machinery established under the Constitution to look into the same and review the same to cope with the dire necessity. The Legislature has a moral responsibility to consider all the aspects and search the possibility for curbing road accidents causing manslaughter by providing provisions of deterrent punishments in the penal provisions of the relevant enactments.

The Following Poem is Composed by Kumari Justice

A. Lekshmikutty (Retd.) on The Retirement of

Hon'ble Mr. Justice R. Rajendra Babu

\·IÄsImIp \ndbs«

PohnX Ime¯ntesd \msfms¡bpw

\otbm Ign¨Xo tZhmeb¯nembv.

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CÃnà s\m¼c¯n¶nà Imcyhpw.

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sN¿m³ IgnªXn \otbm IrXmÀ°\mw.

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\nsâ kJn \n\t¡In shfn¨hpw.

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\nsâ kpIrXasXm¶psImImbnSmw.

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Imcy§Ä sN¿m³ IgnbpamdmIs«.

F¶pw I\nbs« Cuizc³ \n§fnÂ

\·IÄsImIp \ndbs« PohnXw.

The Following Poem is Composed by Kumari Justice

A. Lekshmikutty (Retd.) on The Retirement of

Hon'ble Mr. Justice N. Krishnan Nair

\osbsâ kl]mTn

HmÀ¯nSp¶pthm "IrjvWm' A¶p\mw Hcpan¨p

F¯nbm emtImtfPn \nbaw ]Tn¡phm³

F{Xtbm kwhÕcw Ignªpsh¶mInepw

C¶se Ignªt]m HmÀ¯pt]mIp¶p Rm\pw.

_mÀ«¬ln emtImtfPn F¯n\msamcpZn\w

BbnSmw Hcp]t£ hn[nX³ \ntbmKamw.

Fs´Ãmw IpkrXnIÄ F{Xtbm XamiIÄ

s]m«n¨p IgnªntX B \Ã Zn\§fnÂ.

cIp hÀj§Ä \½Ä ]n¶n«XdnªnÃ

F{Xtbm thK¯nembv Zn\§Ä IS¶pt]mbv.

\nba_ncpZw \mw FSp¯sXmtcZn\w

k¶[p e`n¨tXm Hcpans¨mcpZn\w.

HmÀ¯nSpsa¶mIntem AÛpXw kv^pcn¨nSpw

hn[nX³ \ntbmK§Ä F{Xtbm hnNn{Xamw.

{]mIvSoÊp XpS§n \mw Hcpans¨mtcZn\w

Gsd \mÄ Ignªnà \½tfm {it²bcmbv.

A¶p Rm³ ]dªntà HmÀ¯nSp¶pthm \obpw

\½tfm Ccp¶nSpw Unhnj³_©nÂXs¶.

D]cn]T\hpw Ignªp ]Tn¸n¡m³

t]mbntX F¶mInepw hoIpw \o Xncns¨¯n.

\n¶psS A²ym]\PohnXw \n\t¡In

F{Xtbm {]KÂ`cmw injysc ktlmZcm!

Ahcn ]ecn¶p \oXn]oT¯n hmgvsI

A`nam\n¡m³ \n\s¡{Xtbm hI \ÂIn.

hoIpw \o Xncns¨¯n {]mIvSoÊp XpS§sh

Cuizc³ \n\t¡In PnÃmPUvPnbmw tPmen.

H¶pIn bmZrÑnIw Asæn ssZthÑbpw

Hcpans¨mtcZn\w BIphm³ IgnªXpw.

F¯n\mw kwØm\¯n³ ]ctam¶XØm\w

Iev]nXamImw ]t£ BbXpw HtcZn\w.

C¶nXm ]ncntbI t\cambv At¸mtg¡pw

H¶n¨p ]ncnªnSmw BlvfmZNn¯t¯msS.

kvt\ln¡psa¶mIntem Bbncw aS§p \oþ

kvt\ln¡pw, shdp¡pIn BbXpw AXpt]mse.

DIXp \n\¡ev]w ap³ipWvTn F¶mInepw

DcpIpw aªpI«bmbnSpw DS³Xs¶.

\n\¡mbv Hcp¡nb thZnIsfÃmwXs¶

\¶mbn Ifn¨p \o Ac§p XIÀ¯ntÃ!

C¶n\n HgntbWw Øm\asX¶mInepw

Jn¶X tXm¶otSI Imcyta hcp¶nÃ.

\n¶neÀ¸nXamb IÀ½§sfÃmwXs¶

`wKnbmbv sImsI¯n¨p kvXpXyÀlamIpw hn[w.

Cuizc ImcpWy¯m \n\¡p e`n¨tXm

kÂkJn, kÂk´Xn BbXpw alm`mKyw.

\n¶psS kÀtÆm·pJ DbÀ¨bXn³ ]n¶nÂ

\n¶psS a\kzn\n AhÄX³ Ic§fmw.

\osbsâ "kl]mTn' t\cp¶p \n\¡p Rm³

BbpÊpw, BtcmKyhpw kÀÆku`mKy§fpw.

Who Will Have the Last Laugh - The Lenders or the

Borrowers

(By R. Ravikumar, Manager (Law) Central Bank of India, (R.O) Ceimbatore)

Honourable Supreme Court of India has upheld the constitutionality of the Securitisation Act which empowered the Secured Creditors to attach, sell, create third party interests & takeover defaulting units without the intervention of the court. At the same time court has struck down S.17(2) of the Act as unconstitutional which interalia stipulated deposit of 75% of the defaulted amount by borrowers while preferring appeal to the Appellate forum, the Debt Recovery Tribunals. Now, the secured creditors as well as industry on behalf of borrowers is hailing the verdict and hence an analyses is warranted.

In order to tackle the menace of mounting Non-performing assets of lenders, Parliament enacted DRT Act in 1993 and established various Tribunals throughout the country. As apparently as these Tribunals were not delivering the expected result and in the wake of NPA shootingup to the level of Rs.l lac crore, an alternative mechanism was thoughtout.

Securitisation Act enacted and put to use by lenders which was opposed tooth and nail by the borrowers and on their behalf by the industry. Now while upholding the constitutional validity, Supreme Court has struckdown S.17(2) which stipulates depositing of 75% of the defaulted amount as a condition precedent for prefering appeal by borrowers. While doing so certain guidelines were laid down by way of obiter dicta.

That borrower has a right to appeal only after possession is taken over by the secured creditor. Though within the narrow scope and on the limited grounds on which a civil suit is permissible in matters relating to English mortgage enforcable without intervention of court, a civil suit permitted by a borrower. This narrow scope is nothing but attribution of fraud. Though establishing fraud is difficult against a creditor mortgagee, to maintain a civil suit suitable pleading in the plaint to that effect is sufficient. Thus a recalcitrant borrower obtaining an injunction against a secured creditor from a civil court alleging fraud cannot be ruled out.

Further appeal under S.(17) to DRT is provided against any measure taken by the secured creditor under S.13(4) of the Act. These steps include taking possession or taking over the management, valuation of the security interest and fixing up of upset price by Authorised Officer, calling for tenders by private or public auction, sale, confirmation of sale etc. It appears that a borrower/guaranter can challenge the secured creditor's action at each stage by way of an appeal culminating upto Supreme Court by way of a Special Leave Petition.

As Securitisation Act covers NPA accounts above Rs.1 lakh, DRT's will be flooded with appeals and this will further hamper the progress of its normal functioning.

Thus on a final analysis it appears that the secured creditor's proceeding further under the Act is going to be entangled in multifarious litigation and the borrower and the industry will have the last laugh.

STRIKE BY JUDGES; A STROKE TO JUDICIARY

(By Kauser Edappagath, Advocate, Kannur)

Judicial function cannot and should not be permitted to be stonewalled by browbeating or bullying methodology, whether it is by litigant or counsel. Judicial process must run its even course unbridled by any boycott call of the bar or tactics of filibuster adopted by member thereof — said Justice K.T. Thomas in a landmark verdict on lawyers right to strike in Mahabir Prasad Sing v. Jacks Aviation Pvt. Ltd. (1999 (1) KLJ 530 (SC). This pondering words has to be rewritten as to include Judges also in view of the recent episode of mass boycott by the Judges of the Punjab & Haryana High Court. The wisdom of the twenty six Judges of the Punjab & Haryana High Court to go on mass leave, in response to the disciplinary action taken against two of their colleagues for having accepted ex-officio membership of a golf club that was itself the subject matter of litigation, has brought the judiciary into ridicule. It has also aggravated the public disenchantment with the judiciary.

The Constitution of India has delineated distribution of sovereign power between the legislature, executive and the judiciary. Under a controlling Constitution like ours, the role of judiciary is vital. To maintain the scheme of separation of functions as delineated by the Constitution it is necessary that the judiciary exercise utmost self-restraint. Members of the judicial service perform exclusively judicial functions and are responsible to the administration of justice in the State. The judicial service is not in the sense of employment. Nor are the judges employees. They are the indispensable servants of the society. As members of the judiciary they exercise sovereign power of the State. They are holders of public office. Their office is an office of public trust. To quote Justice V.R. Krishna Iyer (Legally Speaking, page 259, Justice V.R. Krishna Iyer), "a Judge is a social engineer and people's sentinel and fulfills himself not merely adjudicating on the list he tries but by catalyzing moral material transformation, not as a blinked professional but as dignified surrogate constitutional daring to catalyze public opinion when evil forces hold to ransom progressive values". The Court is for the people and therefore its credentials are based on dispensation of justice. The primary function of the Court is to administer justice to and in between the parties approaching the Court. The Courts would be failing in its duties in not performing such a function on the ground that the Judges chooses to abstain from sitting in Courts. The functions of the Court in the matter of administration of justice should not be allowed to be stalled by such incredulous methods.

Mass leave or boycott virtually paralyzing the administration of justice is no doubt an act come within the ambit of "strike". The Apex Court of India in two recent land mark decisions (Harish Uppal v. Union of India, 2003 (1) KLT 192 (SC) & Rangarajan v. State of Tamilnadu, 2003 (3) KLT 86 (SC) held that the lawyers and Government employees have no legal or statutory right or moral or equitable justification to go on strike. Then what is the moral authority of a striking Judge to judicially condemn unjustified strikes? In the case of K. John Koshy & Ors. v. Dr. Thrakshwar Prasad Shaw (1998 (8) SCC 624) one of the questions before the Supreme Court was whether the Court should refuse to hear and pass an order when counsel for both the sides were absent because of a strike call by Bar Association. The Supreme Court held that the Court could not refuse to hear the matter as otherwise it would tantamount to court becoming a privy to the strike. The Supreme Court reiterated the same view in Mahabir Prasad Sing's case (supra) and held that no court is obliged to adjourn a case because of the strike call given by any association of advocates or a decision to boycott the Courts either in general or any particular one. In Rajinder Singh v. Union of India (1993 (1) KLT 657) the Division Bench of the Punjab & Haryana High Court took the view that even when the lawyers call the strike Judges cannot treat day of strike as a paid holiday. It is quiet unfortunate that Judges themselves now have indulged in strike. No body or authority, statutory or not, vested with the powers can abstain from exercising their powers. Every powers vested in public authority is coupled with the duty to exercise it. Judges, who are responsible to uphold the dignity of the Court and majesty of law, are duty bound to see that administration of justice is effectively done. Since strike interferes with the administration of justice and infringes the fundamental right of litigant for speedy trial of their case, strike by Judges can never be accepted as mode of protest.

Judiciary is the only organ in India in which the public faith still persists. The common man inspite of the delays and hassles of litigation still respect the judiciary. The incident like Punjab & Haryana should not be repeated in order to maintain the public confidence in the judiciary. This type of incident could not have been taken place had there been a legally sanctioned method for disciplining judges. There is urgent need to set up credible machinery to investigate into the charges against Judges. It is high time to enact suitable law for investigating misconduct of Judges and disciplining them,