Pothole deaths are quite common and have always been on the rise. The primary reason for this would be the lack of maintenance of roads. Potholes are a natural formation and cannot be prevented, but pothole deaths can be prevented by taking appropriate measures.

• What are potholes? and
• why are they considered to be very dangerous?

Potholes are areas of road surface that have cracked down, worn apart and have formed huge holes varying from a few centimeters to meters . The most dominant reason for the formation of these holes is water. However, spillages and emissions by vehicles, accidents, and other damages may also be the various causes. Moisture in the roads and surfaces freezes during the winter season leading to a decrease in the material density due to an increase in the volume.[1] these holes further expand due to overlooking of the issue and lack of proper care/maintenance. But why are these potholes considered to be very dangerous? and what harm do they cause?

Potholes create traffic congestion and lead to gross wastage of fuel. This ultimately adds to the air pollution causing various, serious health problems to people. Besides, a lot of accidents occur due to the presence of these potholes. These accidents may be severe enough to cause damages to the body and the life of individuals or may simply have an effect on the functioning of vehicles and tyres.

Statistics And Figuratives

According to the Ministry of road transport and highways, potholes have taken 14, 936 lives between 2013 and 2017. The figures for pothole accidents and pothole deaths are 4,869 and 2,015 respectively[2] .Similarly In 2019, around 4800 pothole accidents have occurred out of which 2000 deaths have been recorded. More than 2000 people have lost their lives due to accidents owing to potholes over the last year and about 4800 road accidents have occurred due to improper maintenance of roads.

Landmark Judgements

Even though a lot of pothole/road accidents are taking place, the awareness about the issue is very less and the roads are continuing to remain in a bad shape. It is indeed the duty of the government and the public the authority responsible for maintaining roads, to check if the roads are in good condition and do the necessary if it isn't to keep them intact. However, a lot of the accidents are going unnoticed and uncovered because of the sole reason that people are not taking the issue seriously and going to the courts for getting the necessary compensation and justice.

In sh. Debayan Mitra vs The Municipal Corporation of Delhi[3], the plaintiff while returning home from office in a two-wheeler had stumbled upon a pothole filled with water and had severe injuries on his right palm and knee. He was given medical treatment and was in bed rest for five days. This had caused a lot of mental agony, pain, and inconvenience to the plaintiff and those around him. After detailed discussions and arguments in view of the facts and circumstances, it was held that the general damages of Rs 10,000, special damages of Rs 1,240 and costs of the suit was to be awarded to the plaintiff by the municipal corporation.

Damages can and must be demanded when there's a failure in the duty to perform by any public authority/government/ public works department.

Legislations

Various laws, doctrines, and principles could be evoked and brought in force to prove the negligence, sheer lack of care by the public authorities responsible for maintaining these roads, thus making them liable for the the occurrence of these accidents.

Negligence
Negligence means “ carelessness ” in layman terms . It is the gross breach of duty to basic care that a reasonable prudent man must anticipate while performing the duty.

According to Lord Wright:
Negligence means more than headless or careless conduct whether in commission or omission; it properly connotes the complex concept of duty, breach, and damage thereby suffered by the person to whom the duty was owed.”

This concept is governed by a well known and well-used doctrine called “ Res ispa loquitor “. The doctrine simply means “the thing speaks for itself “. The doctrine states that the facts and the circumstances surrounding an incident must make the court believe that a lack of care/negligence has occurred.

In Klaus Mittelbecahert v. East India Hotels Ltd. [4] the elements/conditions required to attract the doctrine was established and they are:

1. the the defendant was in exclusive control of the situation that caused the injury
2. the injury would not have occurred if not for the defendant's negligence
3. the The plaintiff's injury was not even partially due to his own negligence /action.

Once these conditions are proved to have occurred,then negligence is established. Gross Negligence can even give rise to criminal liabilities or high penalties. This doctrine could be incorporated when negligence is evident and when the conditions can be easily proven.

The question of liability arises when such carelessness is shown by the defendants, if the damage is caused and if the damage caused to the plaintiff could be foreseen. However, all these can be taken into consideration only if the defendant owes a duty of care to the plaintiff or if it's a breach of duty. When the damage caused is recognizable and could be shown explicitly then the right to claim damages from the defendant party is present and explicit as according to the doctrine of “ damage to the person “.

In Minor Veeran and Another v. Krishnamoorthy and another [5] it was held that if the plaintiff suffers any injuries and simply states the same along with a brief description of the accident and a prayer for damages, then it is sufficient to entitle the plaintiff for a decree of damages.

In Madhu Kaur v. govt of NCT of Delhi& another[6] , it was held that In case of accidents take place as a result of negligence and failure to maintain roads, damages can always be awarded to persons who have suffered or lost a near and dear one.

Further, the concept of general damages which means” those which the law presumes to flow from the negligence complained of “[7], can be brought in here. Once, the plaintiff or the victim of a pothole accident states that the injuries sustained by him were due to a pothole owing to the negligence of the public authorities responsible then general damages could be demanded. It is necessary to prove the damages caused but the allegation in the statement of claim is not necessary.

National Highways Authority Act

the national highways authority of India Act, 1988 was enacted to construct and maintain the highways/roads. The sole purpose of the act was to ensure that the roads and highways were managed properly and there was no difficulty in commutation / transportation.

Section 2 of the act provides the detailed functions of the authority. it states that (1), the Authority may, for the discharge of its functions:

1. survey, develop, maintain and manage highways vested in, or entrusted to, it;
2. construct offices or workshops and establish and maintain hotels, motels, restaurants and rest-rooms at or near the highways vested in, or entrusted to, it;
3. construct residential buildings and townships for its employees;
4. regulate and control the plying of vehicles on the highways vested in, or entrusted to, it for the proper management thereof;
5. develop and provide consultancy and construction services in India and abroad and carry on research activities in relation to the development, maintenance and management of highways or any facilities thereat”

The subsection establishes that it is the duty and function of the authority to maintain these roads and highways.The authority can thus be held liable for any accident/incident owing to improper maintenance in the highways.

In Raj Kumar versus Union of India and Another[9] a scooterist drove over a manhole which was three inches below the surface of the road, lost control, and died after hitting the side/divider railing. The road maintenance agencies, viz. MCD as well as Delhi Jal Board who were required to maintain and repair manhole was found guilty and the compensation was awarded.

Thus it is very properly laid down that the authority responsible for maintaining these roads and highways can be held liable for any breach of duty from their side.

Right To Life

Article 21 is an integral part of the constitution and deals with protecting the life and liberty of an individual. It could be enforced when there is a violation and when the violation could be proved.

In Darshan v. Union of India[10] where the deceased had fallen into a manhole which was left unfinished and uncovered by the authority concerned, the concept of negligence was brought in holding the public authority responsible for the maintenance liable. Further, he was deprived of his fundamental right under article 21 of the constitution.

This provision could be enforced as the state or its instrumentality failed to discharge its duty of care cast upon it, resulting in deprivation of life or limb of a person. Thus it was held that Article 21 could be attracted in the above case and monetary compensation could be claimed under Article 226 of the constitution as a compensation/penalty for deprivation of a fundamental right.

Thus article 21 could be very directly evoked under this pretext and anyone doing any harm or depriving / taking away an individuals life in any manner could be held liable . Public authorities and government agencies are no exception to this and must be subject to strict penalties when a situation involving an individuals life is concerned.

Similarly, UDHR( universal declaration of human rights ) and ICCPR (International covenant on civil and political rights) also deal with protection of life. While article 3 of the UDHR states that “ Everyone's life, liberty, and security of person has the right to “, Article 6 of the ICCPR states “ inherent right to life of every human being. These rights should be protected by law.No one shall be arbitrarily deprived of his life”.

Both these provisions are meant to protect the human beings from any harm being caused to their lives and could be revoked at necessary situations.

Contractual Obligation

The public authorities and government agencies responsible for maintaining roads/ highways are always obligated towards the citizens and commuters of a state/country. However, the Indian Contract act does not have any particular format for entering into contracts. A contract need not be in writing or oral necessarily. The agreement could also be implied from the facts, circumstances, and conduct of the parties.[11]

Even though it is necessary that the conditions under section 299 are to be met with if the duty of the public authority is implied and obvious then these authorities could be found guilty. However, it depends from case to case and may vary from circumstance to circumstance.

Suggested Reforms
Potholes are natural and its formation cannot be prevented but the accidents owing to these potholes could be certainly reduced. A lot of accidents owing to potholes occur due to a few major slacks by various authorities concerned.

• The first and foremost being the reforms suggested for the authority / public authority responsible for the construction of these roads. It is the duty of the public works department to ensure that the construction of these roads/streets take place in a proper manner with good quality raw materials. It is often found that the quality of the materials used in the construction is substandard/ poor . This may be due to lack of funds, lack of care, lack of skill, etc . It is to be duly taken into account that the government must be in charge of funding these organisations and must not compromise the quality of the raw materials used due to inefficient/ subnormal tenders.
   
• Highway engineers and administration must be held accountable for poor construction and construction plan . There may be faulty constructions due to the constructions, the manner in which they are constructed, and so on. It is indeed necessary for highway engineers to work efficiently and to report to the government. Similarly, The government must oversee the working of these engineers and authorities.
   
• The roads must be periodically maintained and monitored by the government authorities by setting up toll number for lodging complaints regarding road maintenance, pothole accident and immediately providing the required assistance for these commuters /passengers.
   
• Technology could be used to its maximum. For example, drones could be used to check the quality of the roads, survey the road conditions, and report. A special commission/ authority could be instituted for each area that could perform these vigilant checks and keep a strict tab on potholes covering.
   
• The laws and legislations regarding the maintenance of roads and duties of the public works department must be instituted. A central public works department regulating and supervising all the work of the state public work departments should be brought in place. The functioning of all these public authorities and the central public works department must be overlooked by the government / special government agencies.
   
• The the government should be ultimately held responsible and liable for these accidents that occur. The government as the “guardian of the nation' must compensate all the pothole crisis victims or their families and must assume full responsibility and blame for the occurrence of accidents.
   
• The penalties for the institutions and authorities responsible for the construction and maintenance of these roads( E.g highway engineers, public works department, contractors, raw material suppliers, etc ) in the happening of these accidents must be made severe and stringent. For example, high amounts of compensation could be awarded and higher in cases where complete negligence has been shown & proved.

Conclusion
Precautions could be taken, suggestions to prevent these accidents could be put forth but it's ultimately about how well they are being implemented and incorporated. Even though there is sufficient awareness about this issue It is very necessary to realize it's seriousness and the impact that it creates. This is not a minor issue that rarely occurs. Hundreds of people daily , hundreds of commuters and travelers face the pothole crisis. The authorities responsible for improper maintenance, thus indirectly causing these accidents must not be let scotch-free. The victims of these accidents must take.

End-Notes:

1. ISSN : 2320-2882 “ A study on potholes and it's effect on vehicular traffic “IJCRT. “February 2018”
2. Road accidents in India 2018” ”Government of India, Ministry of road transport and highways”25.9.2019
3. Suit no 269/10. case id no 62406C0386662010
4. 1999 ACJ 287
5. AIR 1966 Ker 172
6. WP(C) No. 1077/2007
7. AIR 1974 All 147
8. Section 2 of the national highway authority act
9. 124(2005)DLT 218
10. 2000 ACJ 578
11. Moitr's law of contracts & specific relief , 5th ED; Page 1)
    
    Award Winning Article Is Written By: Ms.Medhiyaa.Ramesh
    
    

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