This post is written by Aanchal Chaurasia. She is in 4th year of  B.L.S./ LL.B. from Rizvi Law College in Mumbai University.

 

INTRODUCTION:-

The road is an important mode of transport in India. India has one of the largest road networks in the world with about 59 lakh km of road length.[2]  This road length includes National Highways (NHS), district roads, Expressways, State Highways (SHs), project roads, and PWD roads.  In India, road infrastructure is used to transport over 60% of total goods and 85% of total passenger traffic. Pothole death is been increasing in our life because of the presence of heavy traffic and water on roads. Road safety is very low. In all these cities, an excuse for potholes on the road and the poor condition of roads is always set out by the heavy monsoon.

STATISTICS OF POTHOLE DEATH OCCUR IN COUNTRIES:-

According to a study by the United Nations Economic and Social Commission for Asia and the Pacific (UNESCAP), road traffic accidents cost India nearly 3 pc of its Gross Domestic Product (GDP) a year or, in absolute terms, about USD 58,000 million.

In 2016, every day six lives were claimed by potholes in India. These are just the numbers of reported deaths and the numbers could be higher as dozens of pothole-related deaths go unaccounted for. According to the data shared by states with the Centre, Uttar Pradesh, Maharashtra, Gujarat, Kerala, Andhra Pradesh, Odisha, and West Bengal are there among the top 10 states in deaths related to potholes in the country.[3]

On March 31^st, 2017, 63.24% of Indian roads were paved.[4] In the three years between 2015 and 2017, potholes in India were a factor in over 9,300 deaths, according to government figures.[5]^,[6]. In 2017, 3,579 people were killed and 25,000 injured due to pothole-related mishaps.[7] 

CHALLENGES FACED BY THE VICTIM IN POTHOLE ACCIDENT:-

Every year, during the monsoon season the headlines poured out related to pothole death. The paradox of the situation is that as opposed to booking cases against engineers or contractors for shoddy maintenance of roads, police reports often blame the victims or drivers for ‘death due to negligence’. Negligence on the part of road owners or maintenance authorities is rarely brought to the book.  The following case has been given above regarding the challenges of the victim’s family.

In Hill Vs Bradley[8], Moore Vs Virginia Transit Co.[9] and Atthaulla Vs State of Karnataka[10] case, there is no insufficient evidence to prove the case in front of the jury.

In the City of Richmond Vs Branch[11] case, the investment in road safety was low. The city violated the nondelegable duty to maintain safe streets.

In Smt. K.S. Chayadevi And Ors. Vs Corporation Of The City Of Bangalore[12] case, the accident had occurred entirely because of the failure of the respondent Corporation to keep the road in good repair. The claimant’s remedy lay in a civil action before a competent Civil under Sec of 165 and 110(1) the Motor Vehicles Act. The Tribunal was therefore justified in dismissing the claim petition on that ground.

In the High Court On Its Own Motion Vs State Of Maharashtra And Ors,[13] case, they have issued a further interim direction.

Mostly the victim has to deal with the issue of compensation for hit-and-run and road accidents. We need a new amendment regarding the pothole accident.  Potholes are usually provoked by the presence of heavy traffic and water on roads. Several studies are escorted in many cities that point to the insufficiently of a proper drainage system and weak proportioning of aggregates for road construction as major reasons for pothole formation. Therefore, it becomes necessary to guarantee the use of standardized methodology and good quality material when constructing roads. There also needs to be an effective system to ensure accountability and be regular maintenance. There is a need to incorporate the Safe System Approach in all aspects of road design, engineering, and construction. This perspective takes into account the possibility of human error and ensures that the surrounding environment and infrastructure are designed to save lives. Responsible to construct and maintain the road is to be penalized with a sum capped at ₹1 lakh. The Central government is prescribed the Bill directs those safety standards. Regrettably, engineers and road contractors will still not be held criminally liable for causing deaths and injuries. But a fine, even if it is a small amount, is a step in the right direction.

Road safety is a multispectral issue. At a policy level, the first step is to create an enabling framework that weaves in different progressive aspects across stakeholder sectors under one legislation. The Motor Vehicles (Amendment) Bill, 2017 aims to rectify several systemic issues by providing a uniform driver licensing system, rationalizing penalties, protecting children and vulnerable road users, and creating a system of accountability in the construction of roads. In July 2018, the Bill was sent to the Rajya Sabha, it still anticipates passage. The Bill is not an elixir for all problems, but it is the first step towards ensuring that no deaths are caused by road crashes.

The National Transport Development Policy Committee (2014) had noted that the amount spent on maintenance of roads is low. This results in roads with potholes, weak bridges, and poor pavements, and has safety consequences.  Further, maintenance is carried out only when required, as opposed to being a part of preventive measures.[14]

WHAT INITIATIVES ARE BEING TAKEN TO IMPROVE THE SITUATION?

The Standing Committee on Transport (2017) had recommended an effective monitoring mechanism for the repair and maintenance of roads that should be put in place.[15] Further, there should be penalties for contractors and engineers in case of poor quality repair, maintenance, and construction. It had also noted issues of under-utilization under maintenance and repair works.[16]

The governments have said that it has mandated ‘Road Safety Audit’ at each stage of the highway project to provide safer transportation to road users. National Highways Authority of India (NHAI) has appointed an independent engineer/authority engineer and the concerned project directors of NHAI scrutinize the project highways under their respective jurisdictions and take suitable short and long-term measures through the concessionaires/contractors/to warrantee that the roads are pothole-free.

New techniques called “micro-surfacing” have further been experimented on Bengaluru roads by Bruhat Bengaluru Mahanagara Palike (BBMP). The technique involves coating the road with a 6-mm-thick slurry seal. The seal will protect the asphalt and keep it from crumbling. The technique is more popular outside India and has been introduced in Bengaluru after successful trials in Chennai, Hyderabad, and Chandigarh.

The Evidence should be showing that the defect constituted a danger will not be limited to photographic evidence alone, but also includes measurements, information about the location, and the opinions of council employees carrying out inspections of the relevant stretch of road. Absent any failure to consider the relevant evidence or a misunderstanding of such evidence, the court will usually not negotiate.

Haryana had launched the Vision Zero programmer last year which is aimed at reducing road traffic accident fatalities to zero in the long term. Also, Delhi’s state government approved a similar policy that commits to a 10 pc annual reduction in accident deaths. There are many apps for register pothole complaints and launched by BMC. Most of the apps work very slowly. The government should work faster and take immediate action. What the engineers need to do is simply visit the affected areas and guarantee that the work is being done honestly. It goes beyond my understanding when so many platforms are already available why does the BMC need another app? This is like adding salt to the wounds of the common man[17].

CONCLUSION:-

During monsoon, every year deaths related to potholes are increasing, and just like every year, the family of the victims for their loss is given compensation. Is Compensation enough for the victim’s family? Alternatively, of filing cases against contractors and engineers in cases of road maintenance and safety, politicians and officials often blame the drivers for negligence. Why can’t agencies take steps to avoid such tragedies? Why can’t we have a protocol to identify and fill our potholes? The practice of paying Rs 4-5 lakh compensation for each death should stop. How can the government simply end the matter by fixing such a price for any human life? By filling these potholes ourselves, we are facilitating the BMC to evade their legal obligation and they treat the problem as resolved. When the annual BMC budget is Rs30,000 crore, why should we let them evade their responsibility since it is all out of tax-payers’ money?

The Potholes Identification, Assessment, and Repair Guidelines should be as follow[18]:

• Use the best materials available to reduce re-patching. The quality of patching materials is the most important property affecting patch performance. For the best performance, it is recommended to use the best materials available.
• Use high-productivity operations in adverse weather. Throw-and-roll and spray injections are the methods of choice for efficient pothole patching.
• Factor in the safety and delay costs when evaluating the cost of a patch.
• Repair failures when they are small, then seal the area around to reduce pothole growth. Use temporary repair methods if permanent repairs cannot be scheduled immediately.
• Before selecting spray injection equipment, request demonstrations and orientations on maintenance and personnel requirements from producers.
• Trailer type units are the most suitable spray injection equipment type for smaller agencies, as they are simple to use and significantly lower in price than self-contained units.

We need a new amendment regarding the pothole accident. We shall make awareness that the right to have properly maintained streets is a fundamental right of citizens as Art 21, the citizens have a right to seek compensation. The road contractors and engineer should be held criminally liable for causing deaths and injuries under Sec 299, 304-A, 192.3 and 337 of IPC and section 173 of the Code of Criminal Procedure (CrPC)[19]

[1] Mahavir Road And Infrastructure … vs Iffco Tokio General Insurance Co. (2016), Consumer Complaint No. 43. (India).

[2] Ministry of Road Transport and Highways, Basic Road Statistics of India 2016-17,  http://morth.nic.in/showfile.asp?lid=4585.

[3] Varsha Singh,” The pothole problem in India- Motor Vehicles Amendment Bill is the need of the hour”

Kolkata, Media India Group, July 27^th, 2018, https://mediaindia.eu/business-politics/the-pothole-problem/.

[4] “Basic Road Statistics of India 2016-17” (PDF). Ministry of Road Transport and Highways, March 22^nd, 2020.

[5] K. Dash, Dipak, “Potholes: Potholes killed 3,597 across India in 2017, terror 803”, The Times of India. July 15^th, 2018, https://timesofindia.indiatimes.com/india/potholes-killed-3597-across-india-in-2017-terror-803/articleshow/64992956.cms.

[6] Kaur, Kamaljit, “Over 9300 deaths, 25000 injured in 3 years due to potholes”, India Today, July 24^th, 2018, https://www.indiatoday.in/india/story/over-9300-deaths-25000-injured-in-3-years-due-to-potholes-1294147-2018-07-24.

[7] Dhillon, Amrit, “More deadly than terrorism’: potholes responsible for killing 10 people a day in India”, The Guardian, July 16^th, 2019, https://www.theguardian.com/world/2018/jul/25/more-deadly-than-terrorism-potholes-responsible-for-killing-10-people-a-day-in-india.

[8] Hill v. Bradley, (1947) 186 43 S.E.2d 29. 394,(Va.), U.S.A.

[9] Moore v. Virginia Transit Co., (1948) 493, 50 S.E.2d 268. 188 (Va.) The U.S.A.

[10] the Athaulla Vs State Of Karnataka, (2018),1 H.C., Criminal Revision Petition No. 117. (India).

[11] City of Richmond v. Branch, (1964) 424, 137 S.E.2d 882. 205,(Va.) The U.S.A.

[12] Smt. K.S. Chayadevi And Ors. vs Corporation Of The City Of Bangalore, II (2002) ACC 439, (India).

[13] High Court On Its Motion vs State Of Maharashtra And Ors, (2015),1 H.C., Civil Jurisdiction,71 (India).

[14] “Volume 3, Chapter 2, Roads and Road Transport”, India Transport Report: Moving India to 2032, National Transport Development Policy Committee, June 17, 2014,  http://planningcommission.nic.in/sectors/NTDPC/volume3_p1/roads_v3_p1.pdf.

[15]  “220th Report: Demands for Grants (2015-16) of Ministry of Road Transport and Highways”, Standing Committee on Transport, Tourism and Culture, April 28, 2015, https://rajyasabha.nic.in/rsnew/Committee_site/Committee_File/ReportFile/20/31/220_2016_7_17.pdf.

[16]Prachee Mishra, “Demand for Grants 2020-21 Analysis: Road Transport and Highways”, PRS Legislative Research, February 11^th, 2020,  https://www.prsindia.org/parliamenttrack/budgets/demand-grants-2020-21-analysis-road-transport-and-highways#_edn22.

[17] Pankaj Upadhyay, “BMC launch a new app for potholes”, India Today, September 20^th, 2019, https://www.indiatoday.in/india/story/bmc-potholes-app-mumbai-1601320-2019-09-20.

[18] Communities of Tomorrow Leveraged Municipal Innovation Fund, “The Potholes Identification, Assessment, and Repair Guidelines”, August 2012, https://suma.org/img/uploads/documents/communities_of_tomorrow/Pothole%20Guidelines.pdf.

[19] Bijendra Ahlawat, SIT blames 2 firms for pothole death, Tribune News Service, October 18^th, 2018, https://www.tribuneindia.com/news/archive/haryana/sit-blames-2-firms-for-pothole-death-669199.