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IN THE HIGH COURT OF CALCUTTA
Dipankar Datta, J.
Byom Mondal - Petitioner
Versus
The State of West Bengal & Ors. - Respondents
W.P. No. 29097 (W) of 2015
Decided on : 29-03-2016.
MOTOR VEHICLES ACT - SECTION 39, 66, 2(28) - MOTORISED VANS - BANNING AND/OR RESTRICTING PLYING OF MOTORISED VANS - COMPENSATION TO VICTIMS OF ROAD ACCIDENTS INVOLVING MOTORISED VANS - RULE OF LAW - SEPARATION OF POWERS - JUDICIAL REVIEW - MANDAMUS - PUBLIC INTEREST LITIGATION - LAST-MILE CONNECTIVITY - ENVIRONMENTAL AND PUBLIC DIFFICULTIES.
Fact of the Case:
The petitioner's wife met with a road accident involving a motorised van. The petitioner approached various authorities seeking justice, including a ban on the plying of motorised vans and compensation from the State. The petitioner filed a writ petition claiming relief, including a writ of mandamus to compel the authorities to take effective steps to ban the plying of motorised vans.
Finding of the Court:
The Court held that the motorised vans fitted with petrol/diesel engines of 26 cc capacity or more answer the definition of "motor vehicle" in section 2(28) of the Motor Vehicles Act, 1988. The Court found that the continuous plying of such motorised vans predominantly in the rural areas of West Bengal and occasionally in the urban areas cannot escape the notice of anyone who has a penchant to travel by road. The Court also found that the motorised vans do not have registration and permit as required by the Act, are not insured, do not possess 'pollution under control' certificate under the Central Motor Vehicles Rules, and do not also pay tax in terms of the provisions of the West Bengal Motor Vehicles Tax Act, 1979 and the West Bengal Additional Tax and One-Time Tax on Motor Vehicles Act, 1989.
Issues: 1. Whether the motorised vans fitted with petrol/diesel engines of 26 cc capacity or more answer the definition of "motor vehicle" in section 2(28) of the Motor Vehicles Act, 1988? 2. Whether the continuous plying of such motorised vans predominantly in the rural areas of West Bengal and occasionally in the urban areas can escape the notice of anyone who has a penchant to travel by road? 3. Whether the motorised vans have registration and permit as required by the Act, are insured, possess 'pollution under control' certificate under the Central Motor Vehicles Rules, and pay tax in terms of the provisions of the West Bengal Motor Vehicles Tax Act, 1979 and the West Bengal Additional Tax and One-Time Tax on Motor Vehicles Act, 1989?
Ratio Decidendi: The Court held that the motorised vans fitted with petrol/diesel engines of 26 cc capacity or more answer the definition of "motor vehicle" in section 2(28) of the Motor Vehicles Act, 1988. The Court found that the continuous plying of such motorised vans predominantly in the rural areas of West Bengal and occasionally in the urban areas cannot escape the notice of anyone who has a penchant to travel by road. The Court also found that the motorised vans do not have registration and permit as required by the Act, are not insured, do not possess 'pollution under control' certificate under the Central Motor Vehicles Rules, and do not also pay tax in terms of the provisions of the West Bengal Motor Vehicles Tax Act, 1979 and the West Bengal Additional Tax and One-Time Tax on Motor Vehicles Act, 1989. The Court held that the motorised vans are "motor vehicles" within the meaning of the Act and are subject to the provisions of the Act. The Court also held that the State is under a duty to compensate the petitioner or his wife for the injuries sustained by the petitioner's wife in the road accident involving a motorised van.
Final Decision: The Court directed the State to ensure that with effect from May 15, 2016, motorised vans answering the definition of "motor vehicle" in the Act carrying goods/passengers do not ply on National Highways, State Highways, major district roads as well as roads on which stage carriage/contract carriage services are being offered in accordance with the provisions of the Act. The Court also directed the State to compensate the petitioner or his wife for the injuries sustained by the petitioner's wife in the road accident involving a motorised van.
Dipankar Datta, J.
The pleaded case in the writ petition reveals this. While the petitioner was returning with his wife on 8th November, 2015 to his residence at village Dakshin Belegachhi within Baruipur Police Station from Gopalpur within Sonarpur Police Station, his wife met a road accident. A three-wheeled engine van/motor van driven by an errant and reckless driver, hit the petitioner's wife resulting in her sustaining grievous injury. Since the petitioner's wife required immediate medical care and assistance, he rushed her to a nearby orthopaedic surgeon who prescribed a surgical operation. The petitioner thereafter ran from one Government hospital to the other, but failed to admit his wife owing to dearth of beds. Finding no other alternative, the petitioner obtained a loan returnable with high rate of interest from a private money lender and admitted his wife in a private nursing home on 12th November, 2015. The surgical operation was conducted on 13th November, 2015 where after the petitioner's wife was discharged on 16th November, 2015. Presently the petitioner's wife is completely bed-ridden and there is little possibility of her full recovery and restoration of normal health condition. On and from 20th November, 2015, the petitioner approached various authorities of the civil administration as well as the police administration seeking justice i.e. for banning and/or restricting plying of three-wheeled engine vans/motor vans (hereafter motorised vans) together with monetary compensation from the State.
2. All such representations not having been looked into by the civil and the police administration, the petitioner has presented this writ petition claiming, inter alia, the following relief :
"(a) A writ of and/or in the nature of mandamus do commanding the respondent authorities, each one of them, their men, agents, servants, subordinates and/or assigns to forthwith show cause as to why the petitioner's representations have not been rendered any kinds of importance and why any kinds of proceedings still not initiated against the illegal plying of Engine/Motor Van;
(b) A writ of and/or in the nature of mandamus do commanding the respondent authorities, each one of them, their men, agents, servants, subordinates and/or assigns to consider the representations of the petitioner and direct the respondent authorities to take effective and fruitful steps to make complete restrictions and blanket banning of illegal plying of engine/motor Van;"
3. In paragraph 2 of the writ petition the petitioner has specifically pleaded as follows :
"2. That your petitioner state that three-wheeled engine van/motor van is a living nightmare to the general citizens firstly because it does not have any effective brakes which can control the vehicle immediately, secondly it does not have any horns which can alert the public, thirdly if it metes with an accident general people will not get the advantage of "third party insurance claim" as neither it has registration number nor it has the requisite permission from Regional Transport Authority, fourthly it emits noxious carbon-dioxide and carbon-monoxide which alarmingly increase the pollution level of environment as it does not any pollution clearance/fit certificate and last but not the least it has been regularly plying carrying passengers as night without any provision of light and the entire scenario is more or less effective for West Bengal."
4. This Bench had taken judicial notice of illegal plying of motorised vans on public roads in the district of Murshidabad as transport vehicles in clear subversion of the provisions of the Motor Vehicles Act, 1988 (hereafter the Act), without the same being registered and without obtaining permit in terms of sections 39 and 66 thereof respectively, while hearing W.P. 18204(W) of 2006 [Sri Nirendra Nath Biswas v. State of West Bengal & ors.]. In an order dated September 21, 2006, reference was made to the order dated October 11, 2004 passed by an Hon
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