Deaths due to potholes: Need to invoke Criminal Liability

By Aneesha Sondhi

The high number of accidents and deaths that take place due to potholes is appalling. There exists a lot of red-tapism and the authorities often absolve themselves from taking responsibility in such incidents. Municipal Corporation of Delhi (“MCD”) blames the Delhi Development Authority (“DDA”), DDA blames some other unknown vehicle and so on. This often leaves the victims and the law enforcement agencies perplexed about what step to take next. To avoid such uncertainty, there is a dire need to fix accountability. A strict and express provision exclusively dealing with potholes should be included in our legislations.

The aim of this paper is to find an effective solution to this problem of deaths and injuries occurring because of the potholes. The author will also attempt to find out whether criminal liability can be invoked against the authorities that are entrusted with the duty to maintain the roads and public safety. An endeavor is being made to establish that the authorities owe a non-delegable duty of care to the citizens and that they should be held strictly responsible for the same.

THE MENACE OF POTHOLES

The presence of potholes on the roads of India has resulted in scores of accidents and resultant deaths. The condition of the roads in India is terrible and the general public ends up facing the music. The latest figures available on the website of Ministry of Road Transport and Highways for the year 2018 show that a staggering number of 14,029 road accidents were reported due to potholes. A disturbing number of  2015 deaths took place all across the country due to injuries resulting from pothole accidents. That’s the number of reported cases, imagine the number of unreported ones.

Despite several complaints made by the citizens, the inaction on the part of the road authorities such as National Highways Authority of India (“NHAI”) and municipalities continues. Instead of finding solutions, authorities end up blaming each other and worse the road users and allegedly rashly driven vehicles. Year after year, the problem of pothole becomes even more enormous. Indeed, the quality of roads in our country is very poor and the situation becomes terrible during monsoon. Most of the potholes emerge overnight due to heavy rains and become even more dangerous when the accumulated water makes it impossible to find out if it is a road or a big dangerous hole lurking out there. This causes a spike in the number of accidents. And even when the potholes are filled up and fixed, not-so-durable materials are used which results in resurfacing of the potholes. Therefore, it renders the whole exercise of filling up the potholes futile.

PRESENT LEGAL POSITION

In India, the approach in case of deaths caused by a pothole is compensation-based. There is no explicit legislation dealing with the injury caused by potholes. In various instances, it has been held by the courts that the legal heirs of a person, who died in an accident due to pothole-related injury, are entitled to compensation. Only certain provisions of the Indian Penal Code, 1860(“IPC”) can be used to invoke proceedings against contractors and officers responsible for maintenance of the roads. They include S. 268 i.e. causing public nuisance and S. 283 i.e. causing danger or obstruction in public way or line of navigation. However, the punishments contemplated under these sections are almost negligible.

Under S. 268 IPC, an illegal omission, that causes danger to the public makes one liable. The non-fixation of potholes falls within the purview of public nuisance as it poses danger to the citizens. Callous inaction and lethargy on the part of the authorities constitutes illegal omission. The punishment prescribed for this offence is only 200 Rupees. Ideally, there is need to amend the IPC regarding the section of Public Nuisance and to add imprisonment as a punishment. Looking at the increasing statistics of pothole deaths, it is clear that the present provisions have failed to compel the road authorities to fix the potholes. Similarly, if S. 283 IPC is invoked, the section does not contemplate any imprisonment and the fine prescribed is as low as Rs. 200. These laws need to be revisited as they clearly seem to belong to the medieval times.

In other foreign jurisdictions too, the predominant approach is to award compensation to the victims. Most of the plaints filed in such cases seek for injunction and damages. Taking example of USA, this is an issue falling under the Torts Law where damages are provided in cases of proven negligence. In the case Edmond Stokes v. United States,  a veteran was injured while riding a bus because of the presence of a pothole and this aggravated his existing back pain. The US Court of Appeals, Fifth Circuit, deemed a compensation of $10,000 appropriate and the authorities under the Louisiana Law were held to be negligent for not fixing such a dangerous pothole. In South Africa too, the approach is to award compensation to the victim. A very problematic provision is that of ‘contributory negligence’. If there is any rule disobeyed by the victim, such as not wearing a helmet or failure to spot a pothole, the amount of compensation may be reduced.

NEED FOR FIXING CRIMINAL LIABILITY

A life guard is responsible for saving a drowning person. Similarly, road authorities are responsible for the bad condition of roads. People in authority tend to misuse their power. And inaction is the biggest misuse and should be taken up very seriously. There is dire need for attracting criminal liability in case of Pothole Deaths. There is no provision in the IPC or any other existing criminal laws in our country regarding the injuries and deaths caused by potholes. The death toll is still rising every year and the condition of the roads is far from decent. Needless to say, India has a very poor road safety record. Awarding mere compensation to the victims is not enough.

First Alternative: Invoking Section 304-A IPC

To avoid the construction of sub-standard roads and the delay in rectifying the pothole issue, the contracts and the officers should be made criminally liable. Section 304A IPC (Causing Death by Negligence) states – ‘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’.

The officers and contractors responsible for maintaining the roads should be penalized under this section of the IPC. The liability should arise after the information regarding pothole has been conveyed to the concerned officer and the officer has not taken any action. The inaction on the part of the authorities should be deemed as negligence.  The breach of duty upon intimation regarding the need to fix the pothole is in all certainty, a negligent act. The essential elements of negligence i.e. breach of duty and causation of harm to the victim are present in this case.

A maximum period, say 5-7 days, should be provided to the officer to take action for fixing the pothole. The period is more than enough to arrange for materials and contact contractors to fill the potholes. In fact, there have been instances where a time period not more than  24 – 48 hours  has been provided to the civic authorities to fix the potholes. Failure to get the pothole rectified within this speculated time frame should attract criminal liability. In case any untoward incident takes place within the one-week time frame, the court should assess whether the road authority had initiated any step to rectify the same.   The courts will fix the liability or absolve the officials from any liability depending on various factors such steps taken for arrangement of materials, contacting contractors or any other display of positive intention to fix the pothole. This determination will vary according to the facts and circumstances of each case.

Second Alternative: Invoking Section 304(II) IPC

This provision of culpable homicide is attracted when there is knowledge that death may be caused by one’s act. It is invoked when the accused had knowledge that his act had the likelihood of causing death.  The ‘act’ in this present case is breach of duty by the road authorities and willful ignorance to maintain the road. It is not just plain omission in the performance of duties. In fact, there is no such thing as a liability for a pure omission. Under s. 32 IPC, an illegal omission would constitute as an ‘act’ under the law. When the authorities deliberately turn a blind-eye to the obvious situation, the omission amounts to an act. When the complaints are filed with the development authorities and the municipalities, their confirmation of the same implies that the information about the pothole has been received. Therefore, the element of ‘knowledge’ is present. The digital acknowledgement of the complaint implies the same. They cannot dispute the fact that they were unaware of the pothole. The increasing number of cases have left us with no other option but to treat the willful ignorance of potholes as an incident of culpable homicide. However, this section can only be attracted in case of death. In case of grievous hurt or injury, one can take the aid of S. 338 IPC i.e. causing grievous hurt by act endangering life or personal safety of others.

Third Alternative: Enactment of a Special Law

The onus should be placed on the legislature to address this issue and come up with a special enactment for the same. The existing laws are not enough and one cannot entirely rely upon the judicial decisions to interpret the same. The duty of the judiciary is only to expound what the legislature says. A specific law dealing with such cases involving bad road engineering, steep curves and potholes should be enacted. S. 198A in the Motor Vehicle (Amendment) Act, 2019, though a progressive step in ensuring liability of erring authorities, fails to make them strictly criminally liable for the same. The insufficiency of the existing provisions should act as an impetus to initiate legislative deliberations on this issue.

CONCLUSION

Till the time accountability is fixed, the authorities would keep on passing the buck and the poor victim will be made to make rounds of different courts to get justice. The officers tasked with maintaining the roads cannot escape from liability by claiming that they did not have knowledge about the potholes on a particular road. As they have taken up public responsibility, they must be held accountable for their lapses. Surely, the time is ripe for a major shift in the criminal laws of our country. Either the existing laws should be amended in respect of deaths occurring due to accidents on ill-maintained roads, or there should be an exclusive Act enacted particularly dealing with the issue of potholes. Potholes are a blot on our country’s image, our safety, and our quest for efficiency.  It is imperative that we deal with this issue on a war-footing.

[ The author is a 5th Year Student of University School of Law and Legal Studies, GGSIPU. ]

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One thought on “Deaths due to potholes: Need to invoke Criminal Liability

  1. Very well researched and relevant paper. The author has focused on the pressing need to fix a serious civic problem through the legal route.

    Like

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