NO DIRECTION TO SUSPEND THE DRIVING LICENSE FOR RIDING WITHOUT HELMET - TRANSPORT COMMISSIONER, KERALA

No direction to suspend license for driving without helmet- 
Reply Notice by Transport Commissioner.

Full text of notice sent, seeking to withdraw such direction if any given -

 To

Mr. Rishi Raj Singh

Transport Commissioner

Trans Towers, Vazhuthacad

Thiruvananthapuram-695014.

Sir,

Under the instructions from Social Justice Watch (ER 326/2009), Infant Jesus Building No.2, Banerjee Road, Ernakulam an organization comprising of lawyers and social activists, engaged in imparting legal awareness and legal literacy programs to the general public, I hereby issue the following notice. You may kindly take note-

          THAT it is noticed through the various media reports and incidents reported to our organization, action have been taken by some of the RTO’s in Kerala, for suspension of driving license of persons who were riding motor cycles without wearing helmets (protective head gears). Admittedly using helmet while riding motor vehicles would help to prevent fatal accidents and therefore all are bound to use helmets as per law.

         

          THAT, despite of the good intention you might have in taking strenuous action against helmetless riders, you are not supposed and authorized to issue any direction which is against the provisions of legislation. The Motor Vehicles Act does not contemplate any action of suspension of license for an offence of driving a motor cycle without protective head gear. Any such direction would be an act of ultra vires of the powers granted to you as an officer in executive and it is against the legislative intention behind the Motor Vehicles Act and Rules.  

          THAT, the act of sending notices to suspend driving license to those who are not using helmets while riding motor cycles is illegal and the authorities appointed under the Motor Vehicle Act, 1988 have no jurisdiction to suspend the license of persons in the above said category. Such an action from various RTO’s as per the alleged direction issued by you is creating difficulty, apprehension and unrest among the common run who are using two wheelers in Kerala.

         

       

          THAT, the section 21 and 22 of the Motor Vehicle Act, 1988 laid down the provisions for the suspension or cancellation of licenses in connection with the offences under the Motor Vehicle Act. But those provisions are related to the accused persons who are convicted for offences of required nature and said provisions cannot be used against the persons who drive two wheelers without protective head gear. Section 19 of the said Act specifies the power of the licensing authority to disqualify the driving licenses and revoke such licenses. Driving without helmet is not an act which is likely to cause nuisance or danger to the public and therefore none of the provisions under Section 19 cannot be applied in case of driving motor cycles without helmet, for issuing notices for suspension of license.

          THAT, it is admitted that wearing of protective head gear(helmet) is mandatory as per Section 129 of the Act and 347 of Kerala Motor Vehicle Rules 1989. It also requires that the protective head gear owned by a person shall be of ISI Standard. The offences of not wearing helmets are covered under Section 177 of the Motor Vehicle Act 1988, the general provision for punishment for offences. The Section 177 clearly stipulate whoever violating any of the provisions of this Act be punishable with a fine for Rs.100/- and for subsequent offences with fine upto Rs.300/-.

          THAT, the aforementioned being the legal position, the Act of RTO’s issuing the notices to suspend the license as per your direction is illegal. There is no provision to suspend license for offences covering u/s 177 of the Motor Vehicle Act. Furthermore as per the decision in 2011 (2) KHC 261 Mehaboob Vs. State High Court of Kerala and established provisions of law and offences of Motor Vehicle Act are non cognizable in nature and even the courts cannot take cognizance on a charge sheet submitted by the police or any other enforcing agency upon offences under the Motor Vehicles Act, if such charge is filed without obtaining leave from Magistrate u/s 155(2) of the CRPC.

          THAT, the issuance of such illegal and arbitrary notices to suspend the license will result in giving reply by those persons by taking legal opinions and the concerned officers have to consider the replies and hear the matter and thereby, the Government machinery will have to do this additional work and met with additional expenses. The persons in the Department who issued such illegal notices alone can be made liable for such futile exercise of the Government machinery. Obviously, all these exercise are at the expense of public exchequer and on the basis of a notice issued without authority and legality, the state machinery have to defend it and spend considerable time and staff strength for disposing such petitions. This may affect the other routine work of the RTO offices and after all, all these exercise are futile, because there is no such power for any official as per Motor Vehicles Act to suspend the license of a person who had driven a two wheeler without protective head gear. By knowing all these facts, you are not supposed to issue such a direction, which will cause much loss in terms of money and manpower to the State.

          Therefore you are hereby directed to withdraw any such direction issued by you to suspend the driving licenses of persons who drove two wheelers without wearing protective head gear OR instruct the officers in your Department not to issue any illegal notice of suspension of license for the offence of driving two wheeler without using protective head gear, within 7 days of receipt of this notice and failing which, I got clear instructions to initiate appropriate legal proceedings only and those officers who issue such illegal directions and notices alone will be liable for the cost and consequences thereof.

Dated this the 26^th day of September 2013

Sherry J Thomas

Advocate