Transport in India consists of transport by land, water and air. Road transport is the primary mode of transport for most Indian citizens, and India's road transport systems are among the most heavily used in the world.
India's road network is the second-largest, after the United States and one of the busiest in the world, transporting 8.225 billion passengers and over 980 million tonnes of cargo annually, as of 2015. As per 2017 estimates, the total road length in India is 5,603,293 km (3,481,725 mi) making the Indian road network the second largest road network in the world after the United States. At 0.66 km of highway per square kilometre of land the density of India's highway network is higher than that of the United States (0.65) and far higher than that of China's (0.16) or Brazil's (0.20).
Transport law (or transportation law) is the area of law dealing with transport. The laws can apply very broadly at a transport system level or more narrowly to transport things or activities within that system such as vehicles, things and behaviours. Transport law is generally found in two main areas:
· legislation or statutory law passed or made by elected officials like Parliaments or made by other officials under delegation
· case law decided by courts.
Currently India has three laws covering the domain of road transportation in India.
· Motor Vehicles Act, 1988
· Road Transport Corporation Act, 1950
· Carriage by Road Act, 2007
These statutes do not serve a singular purpose but have different functions in making road transportation easier and safer.
Motor Vehicle Act, 1988
The Motor Vehicles Act, 1988 which came into force from 1 July 1989 and replaced the Motor Vehicles Act, 1939 aims at consolidating and amending the laws relating to motor vehicles. However, judging by the entire statute, it seems the chief aim of the statute was to ensure road transportation and motor vehicle safety, as the entire statute deals with provisions relating to licensing of drivers/conductors, registration of motor vehicles, control of motor vehicles through permits, special provisions relating to state transport undertakings, traffic regulation, insurance, liability as well as offences and penalties if the above provisions are violated.
The Motor Vehicles Act, passed in the year 1988 by the Indian Parliament, regulates almost all aspects of road transport vehicles. It has provisions for traffic regulations, vehicle insurance, registration of motor vehicles, controlling permits and penalties. The Act came into force from 1 July 1989.
To make roads safer, the Government of India in consultation with state transport ministers came up with this Motor Vehicles (Amendment) Bill to makes changes to the Motor Vehicles Act, 1988. The Motor Vehicles (Amendment) Bill, 2017, was passed by the Lok Sabha on April 10, 2017.
The Rajya Sabha cleared the Bill on July 31, 2019, with 108 votes in favour and 13 against it, with three amendments moved by Road Transport and Highways Minister Nitin Gadkari.
The Motor Vehicles (Amendment) Bill, 2019 proposed a huge increase in various penalties for traffic violations, protection to Good Samaritans, recall of defective vehicle parts by automobile companies, holding builders accountable for poor quality of infrastructure and making vehicle owners criminally liable for violations committed by juvenile drivers.
Below are some of the important proposals in the Motor Vehicles (Amendment) Bill which has now been incorporated in the Act:
1) It makes Aadhaar mandatory for getting a driving licence and vehicle registration.
2) For deaths in hit-and-run cases, the government will provide a compensation of Rs 2 lakh or more to the victim's family. Currently, the amount is just Rs 25,000.
3) In traffic violations by juveniles, the guardians or owner of the vehicle would be held responsible, unless they prove the offence was committed without their knowledge or they tried to prevent it.
4) The minimum fine for drunk driving has been increased from Rs 2,000 to Rs 10,000.
5) The Bill mandates automated fitness testing for vehicles.
6) The Bill allows the central government to order for recall of motor vehicles if a defect in the vehicle may cause damage to the environment, or the driver, or other road users
7) The Bill provides for a National Road Safety Board, to be created by the central government through a notification. The Board will advise the central and state governments on all aspects of road safety and traffic management, including standards of motor vehicles, registration and licensing of vehicles, standards for road safety, and promotion of new vehicle technology.
8) The Bill provides for a scheme for cashless treatment of road accident victims during golden hour.
The Road Transport Corporation Act, 1950
The Road Transport Corporation Act, 1950 was enacted soon after India’s independence and aimed at enabling the states to provide for its citizens suitable and economical transportation services considering the lack as well as the hidden disdain of private players. The statute enabled the State Governments to set up corporations so as to provide the aforementioned services whilst also providing ancillary services.
The carriage by road Act, 2007.
The Carriage by Road Act, 2007 was enacted with the aim of regularising common carriers and limiting their liability as to the goods carried by them when damage or loss happens to the goods being carried by them that is not occasioned by criminal or negligible acts by the carriers. The statute also causes the consignee having to declare the value of the goods being delivered so that an appropriate liability can be determined upon for the loss of or damage done to the goods because of negligence or criminal acts of the carrier or their agents and servants.
Carriage of goods by land
The Carriage by Road Act 2007 and the Railways Act, 1890, these are the two acts that govern the carriage of goods by land. The law which governs only the common carrier is the Carriage by Road Act. The Road Act came into force on 1st March 2011, this act defines the common carrier. A common carrier can be any individual, firm, or company which transports the goods from one place to another overland or inland waterways as a business for money. A private carrier is the one who moves the goods occasionally for the private work or for somebody else.
Carriage by Road Act, 2007
The Carriers Act, 1865 was nullified when the Carriage by Road Act came into force. The President’s assent on 29th September 2007 and was notified 1st October 2007, this Act came into force on 1st March 2011. “Carriage by Road Rules 2010” was drafted by the Ministry of Road Transport and Highways and they put it on their website for comments. It is an activity mainly for the common carrier. The liability for losses of goods, or damage will be on the common carrier, if they are negligent or engage in criminal activity. This act has 22 Sections.
Railway Act, 1989
Indian railways is the most important and commonly used public transport in India, millions of the people travel every day from this and transfer the goods from one place to another and the Railway Act, 1989 gives the responsibility and liability to the railways of the goods or the products which they are transporting. First, there was the Indian Railway Act, 1890 which was surpassed by this Act, The Railway Act, 1989 which came into force on 1st July 1990. The carriage of goods is in Chapter IX to Chapter XI which is Section 61 of the Railway Act, 1989 to Section 112 of the Railway Act, 1989. Some provisions under this act are-
Every station of Indian railways has to maintain a rate book, which helps a person to know the price of the transportation of goods from one place to another. It should be provided at all times without any payment of any fee. This comes under Section 61 of the Railway Act, 1989.
The provision of the rate of risk is under Section 63 of the Railways Act, 1989. Any such goods that are entrusted with a railway administration for the purpose of carriage of goods will be at the risk rate of the railway administration. An exception to this provision when the carriage is at the risk rate of the owner and the responsibility for its own goods. Where the goods are at the owner’s risk rate as well as the railway’s risk rate, or no specific rate is opted the goods shall be deemed to be entrusted at owner risk rate.
As can be seen, the three statutes combined covers a great area over all matters road transportation related. A statute known as the Road Transport Safety Bill is in the works since 2014, which aims at improving road safety in India, which is a growing concerns among motorists, all over India.
Maharashtra State Electricity Board vs. P.B. Salunke AIR 2009 Bom 185, in this case, a transformer was damaged in transportation from the trailer. The trailer did not have the capacity to carry the transformer. It was held that the carrier was negligent and he will be held liable.
In the case of Nagpur Golden Transport Co. vs. Nath Traders AIR 2012 SC 357, the issue was that would the transporter is liable for the damage of the products if he has given the damages done by transportation, it was held that the transporter will be held liable and pay the damages of the good else everything will stand unjustly enriched.
Road Safety and Traffic Rules
Road safety is a State subject. The administration of the Motor Vehicles Act, 1988 is under the transport Department, which is one of the largest revenue earning departments. The aforesaid Act provides in detail the legislative provisions regarding licensing of drivers/conductors, registration of motor vehicles, control of motor vehicles through permits, special provisions relating to state transport undertakings, traffic regulation, insurance, liability, offences and penalties, etc. For exercising the legislative provisions of the Act, the Government of India made the Central Motor Vehicles Rules 1989. Additionally, there are Rules of Road Regulations, 1989. The aforesaid Transport Department works with two of the concerned authorities, under Section 68 of the Motor Vehicles Act, 1988.
The compliances of these regulations formulated are enforced by the enforcement agencies including Traffic police. If in any case somebody violates the rules and regulations related to traffic laws then they are bound to issue Challans against the offender under penal actions as per Motor Vehicle Act, 1988. It is important to understand what law says about the compliances required for driving a vehicle and what are the duties of owner of vehicle.
Law relating to Registration of Vehicle
Mandatory Registration: Under section 39 of the Motor Vehicle Act, 1988 it prohibits driving of any motor vehicle or any vehicle, which is not registered or no owner of vehicle should permit driving of an unregistered vehicle in public place which is not registered under the provision of the MV Act. Exception to this provision is cars with the dealers.
Jurisdiction for Application: Registration of the vehicle is done by the concerned authority is done on the basis of your residence or place of residence or place of business, where the vehicle is normally kept.
Application for Jointly owned Vehicle: In case of joint ownership, the registration of vehicle can be applied by one of the owners. If a vehicle registered in one state is kept in another state for more than a period of 12 months, then owner of such vehicle has to approach the registration authority for assignment of new registration mark within whose jurisdiction the vehicle is.
Change of Address: If there is change of address, then also, the owner of vehicle is required to approach the authority within 30 days in whose jurisdiction he has shifted for recording the change of address.
Law relating to Driving License
Effective Driving License: Any person not otherwise disqualified to hold a driving license may apply for it. As per the Section 3 of the Central Motor Vehicle Act, 1988 says nobody can drive at any public place until he holds an effective driving license issued to him authorizing him to drive the vehicle. Exception to drive a transport vehicle such a motor cab or motor vehicle hired by him for his own use or rented under a scheme.
Age Limit for obtaining the driving license: No person who is below the age of 18 years shall drive a motor vehicle in a public place. But a motor vehicle of engine capacity not exceeding 50cc can be driven under the age of 16 years. No person under the age of 20 years shall drive a transport vehicle.
Learner’s License: The Learner’s license means a license issued by a competent authority to drive as a learner or a motor vehicle specified under a special class or description. The validity period of learner’s license is 6 months. Jurisdiction for issuing learner’s license is on the basis of place you reside or where you work for gain or on the basis of school or place where he intends to receive driving instructions.
Learner’s license to drive a transport vehicle: It cannot be given unless he drives a light motor vehicle for one year.
Learner’s License to drive a LMV: No person under the age of 18 years shall be granted a learners license to drive a motor vehicle without gear except in writing with person having care of person having the desire of learner’s license. Medical certificate is required with the application form in case of vehicle other than LMV.
Test of competence to drive a vehicle: It would be given in the vehicle specified in application to obtain the driving license.
Power to Revoke License: Licensing authority has power to revoke the license of medically unfit person. Automatic suspension of license by a person who has caused death or grievous hurt of one or more persons. The person should not suffer from any disability. The Registering authority has power to cancel the registration of vehicle that is lost, destroyed or has been permanently rendered incapable for use. If the engine number or chassis number differ from RC, then also registering authority can cancel the registration.
Conditions under which Licensing Authority can revoke a License
· Habitual Criminal
· Addicted to Narcotic Drugs and Psychotropic substances
· Has used or is using a motor vehicle in commissioning of offence
· Any fraud or misrepresentation in obtaining the DL
· Driving to cause danger to public on the basis of previous conduct
· A person under the age of 18 years who has been granted the learner’s license is at present not under the care of such guardian.
Duty to Produce License and Certificate of Registration: The driver of any motor vehicle is duty bound to produce it for examination it for authorities in uniform. The person is also duty bound to stop the vehicle if the vehicle is involved in accident.
Responsibility of Owner of Vehicle: Section 5 of the Motor Vehicle Act, 1988 it clearly says that the owner of the vehicle has a responsibility to not allow driving a vehicle who does not satisfy above conditions.
Law relating to Pedestrian
Indian law under the Motor Vehicle Act, 1988 and other related act provide for preventing the vehicles to run on footpaths. There are several Acts that safeguard pedestrian rights indirectly. The Indian Penal Code (1860) sections 279, 304 (Punishment for Culpable Homicide not Amounting to Murder), and 336/337/338 protects the public, which includes pedestrians, against rash driving and negligence by motorists. The Motor Vehicles Act (1988), sections 7-38 talks about penalizing the motorists exceeding speed limits and license regulation etc, indirectly protecting vulnerable road users. Section 138 clause (h & i) empowers the State government to prevent motor vehicles from using the pavements for driving or parking. The Rules of the Road Regulation (1989) has three rules mentioning pedestrians or their right of way, which are:
The duty of the driver to slow down when approaching a pedestrian crossing (Rule 8)
That no driver can park a motor vehicle near a traffic light or on a pedestrian crossing or a footpath (Rule 15)
Motor vehicles are not allowed to drive on the footpaths or cycle lane except with permission from the police officer on duty (Rule 11)
The Municipal Corporation Acts also protect public roads and streets by terming all obstructions illegal unless they are made with the prior permission of the collector. They are entitled to ascertain the footpath width based on width of the public roads. Under the Persons with Disabilities (equal opportunities, protection of rights and full participation) Act (1995), the government must provide for auditory signals, engraving on the zebra crossings, slopes in pavements for easy access of wheel chair, and warning signals at appropriate places.
B. Traffic and Road Safety Issues
Footpaths not safe for pedestrians: The roads are the most important public spaces in cities and pedestrians are its largest users, but less than 30% of urban roads in India have footpaths. Grave concern can be observed regarding safety of pedestrian to see the footpaths being used by two wheelers, zebra crossing usage culture is missing and crossing any road is uphill task. Despite the laws in place, urban areas can clearly seen encroachment of footpaths by bikes with no action taken. The International Federation of Pedestrians has been explicitly advocating the right to walk in public spaces as a basic human right but yet the picture of same to be implemented in full is yet to be achieved. There is a need to build more roads, make them safer for use of pedestrians throughout India. Since the law is in place, effective enforcement is required.
Road Rage: Road rage is an expression of human behavior with criminal consequences. There is no clear law defining road rage in India. Literally, Road Rage is a term used to refer to the violent incidents caused by stress while driving on high traffic zones on roadways casing death, attempt to cause death or injury. Most of the incidents of road rage occur during peak traffic hours. Prime reasons associated with the incidents of road rage are: Traffic congestion, Noise levels, time constraints, alcohol consumption. Road rage is considered as a criminal offence, which may lead to serious injuries and even death. While there are no clear laws specifying road rage in India, it high time for the government to define and enforce strictly so that people do not take law into their own hands as the same has become a real menace and cause of concern about safety of an individual on road.
Drunken Driving: Impairment by alcohol is an important factor in causing accidents and it has been found as per study reflected on different websites that alcohol was present in between 33% and 69% of fatally injured drivers, and in between 8% and 29% of drivers involved in crashes who were not fatally injured. A study on drivers killed in road crashes has revealed that teenage drivers have more than 5 times the risk of a crash compared with drivers aged 30 and above, at all level of BAC. Drivers 22 to 29 years old were estimated to have 3 times the risk compared with drivers aged 30 years and above, at all BAC levels. Alcohol consumption by drivers puts pedestrians and riders of motorized two wheelers at risk. In Sanjeev Nanda Case discussed below the Hon’ble Court highlights the same well.
Sanjiv Nanda’s Case: In the case State Transport Police Station Lodhi Road vs. Sanjeev Nanda, important judgment from perspective of road safety. The Respondent in this case was charged under Section 201, 304 (I), 308 r/w section 34 IPC for driving his car rashly and negligently and hitting 7 persons. As per judgment, it was highlighted accident means unintended unforeseen occurrences, something that could not be anticipated in course of events. Thus, injury or accidents is not attributable to per se to the intention. If intention is proved and death is caused then it amounts to culpable homicide. It was held by the Hon’ble judge that intention to cause death was not there but the knowledge was there and hence he is liable under section 304 II IPC. The Hon’ble Court found that accident occurred wholly and solely on account of rash and negligent act of the BMW driven by the Respondent.
It was further observed by court that it is difficult to say at what point liquor would begin to show its effect or would be at its peak is difficult to assess. Further, the court pertinently mentions that even after hitting one, the accused didn’t apply the brakes so as to save at least some of the lives. The court observed in its findings that the Respondent instead of lending helping hand ran away from the accident site and also observed that it is not good to run away from the accident site rather a medical help should be given to give it a human touch. An aspect that is lost in such cases is that bodily injury or death may ensue. Regarding the collection of evidence of breath test, Justice K.S Radhakrishnana observed that the accused in this case escaped from the scene and he could not be subjected to breath analyzer test instantaneously. The court observed that cumulative effect of section 205 of the Motor Vehicle Act, 1988 is different. The purpose of the aforesaid section is to be carried when the person is driving or attempting to drive. The court also observed that drunken driving is menace to the society. Late night parties with drunken driving have now become way of life followed by drunken driving. Alcohol consumption impairs vision and it is impossible to judge accurately how far the object is.
No legal obligation is cast upon by-stander either under Motor vehicle Act or any other legislations but greater responsibility is cast on them because they are people at the scene of occurrence and immediate and prompt medical attention can help the victim and the dear ones. Court observed that private hospitals and government hospitals near highways where traffic is high should be equipped with the facilities to meet the emergencies. In view of the judgment passed by the Hon’ble Court in Paschim Banga Khet Mazdoor Samiti vs.State of West Bengal & Ors. the court referred to the report of Justice Lilamoy Ghose and directed the Union regarding immediate medical attention to the victim directing Union to comply by the same, if not done so far. The court also observed that passing vehicle do not stop to help the victims in such a situations too.
Ban on Use of Dark, Black and Reflective Glasses: Use of dark, black or reflective glasses in vehicles is not permitted as per law. As per the orders of the Hon’ble Supreme Court of India, use of black film or any other material is not permitted on the windscreen and side windows of vehicles. Violation is punishable with challan and on-the-spot removal of film. Only company fitted tinted glasses permitted, with 70% visual transmission of light with windscreen & rear window and 50% visual transmission of light for side windows. In Avishekha Goenka vs. Union of India, the Hon’ble Supreme Court had banned the use of black films for any VLT percentage or any material upon the safety glasses, wind screens front or rear or side glasses of all vehicles through out the country. This directions are enforceable from May 4, 2012.
Missing Speed Breaker: Speed breakers are traffic-calming devices constructed in accident-prone areas. Driving at high speed in locality is not uncommon and the common road safety violators. In Delhi, if a stretch of road becomes accident prone for some reason and the local residents want to get a speed breaker constructed, an application may be sent to DCP/Traffic (HQ), New Delhi. On receipt of the application, it is analyzed from traffic point of view and recommendation is sent to Speed Breaker Committee, which decides the construction or removal of any speed breaker. This committee consists of representatives of MCD, NDMC, PWD, CRRI, Traffic Police and concerned residents welfare association.
Under age driving: Of recently, the driving by under age people is not uncommon on Indian roads. The biggest problem is that parents are encouraging underage driver when law clearly does not permit. Even parents who sit behind the driver’s seat when minor is driving, is also wrong under prevailing law. Often when the accident occurs, the culpability of the parents is booked for failing to meet moral and legal responsibility. Schools can play active role in educating students and parents with menace of minor driving.
S. Rajseekharan’s Case: In S. Rajsheekharan vs. Union of India
in this matter the Petitioner being Head of the Department and leading Orthopedics Surgeon filed the aforesaid petition seeking court’s intervention in light of increasing road accidents seeking:
Directions for enactment of appropriate legislative measures
More affirmative administrative actions
Upliftment of existing infrastructure and facilities for post accident care and management.
In view of the paucity of time, the Hon’ble Court constituted a committee to undertake the process of monitoring on behalf of the court consisting of Hon’ble Justice K.S. Radhakrishnan (Judge Supreme Court); Mr. S. Sunder (Distinguished Fellow TERI); Dr. S. Nishi Mittal (Ex. Chief Scientist, CRRI). The matter was posted for hearing six months later.
Justice Radhakrishnan’s Report: The report proposed stern action against the violators of the law under section 19 of the Motor Vehicle’s Act, 1988 which provide power to licensing authority to disqualify from holding a driving license or revoke such license by passing an order disqualifying the holder of driving license for a specified period and seeking imprisonment wherever it is provided under law for:
· Driving at speed limit excellent limit
· Jumping red light
· Driving vehicles under drink and drugs
· Use of mobile phones
· Helmet laws be made applicable in all UTs in India including for pillion riders failing which they would be required to undergo two hours counseling sessions