CERTIFICATE OF ORIGINALITY

17th July, 2020

I Shantanu Sharma, am pursuing law From Damodaram Sanjivayaa National Law University,
Visakhapatnam, enrolled in five - year integrated course of BA LLB (HONS.), studying in 8th
Semester, is presenting the research work on the topic Pothole Deaths in India. I Hereby assure the
authenticity of the research work.

Shantanu Sharma
(Student)

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 POTHOLE DEATHS IN INDIA
“More people die on Indian Roads then in Terrorist Attacks on India”
- Former Justice Madan B Lokur (Supreme Court of India)

ABSTRACT

World has become a global village due to increase in transportation accessibility, within this
increase in connectivity road transport has emerged as a leader among all the other forms of
transport, but increase in road connectivity is directly proportional to increase in number of
accidents and among the accidents India is on top.

This study will emphasise on the deaths caused due to increment in such accidents and further
narrow it down to the accidents caused as a result of negligence on the part of Government
Instrumentalities in terms of the maintenance of the potholes.

The researcher through the study of various landmark judgements, Articles and personnel survey
has tried to throw the light upon the deep rooted aspects which leads to increment in the pothole
deaths in India, and has discussed various other aspects affected post these avoidable deaths , such
as compensation to the family of the deceased from the insurance companies or government
instrumentalities, the provisions of Motor vehicle act, 1988, The relevance of Res Ipsa Loquitur in
Pothole deaths, The role which COVID -19 could play in enhancing the scenario and has finally
concluded the research by providing the possible solutions to eradicate this mechanism, which leads
to these futile loss of lives.

Keywords :- Pothole Deaths, Compensation, Motor Vehicle Act, Negligence, Road safety, Res Ipsa
Loquitur etc.

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 INTRODUCTION

In Today’s Scenario transport has become significant part of an individual’s life. There are several
ways of transport, and Road transport is the most common form of transport among them all as it is
easily accessible and affordable for the major part of World’s population. The transport has reduced
the distance among the far off places and has turned the world into a “Global village”, from the use
of this terminology itself the role and importance of transport can be clearly contemplated.

The transport system all over the globe has surely minimised the distances but on the contrary, has
increased the life risk which comes at handy with the increase in transportation. As with the
convenience, comes the maintenance similarly when transport is providing the convenience of
interacting globally in terms of physical matters then it demands maintenance and when not
properly cared upon, the human life suffers. One such aspect of maintenance is required in terms of
road safety. Roads are the lifeline of road transport and in order for the road transport to work
properly, road needs to be maintained properly.

As per the statistics of WHO, there are only two countries having deaths in six figures due to
improper road conditions, India being on top with 299,091 deaths in the year 20161 . Major part of
these deaths occur due to improper condition of the roads in India. This research paper will further
narrow down the topic and will produce a study upon the deaths that occur in India due to potholes
on Indian roads.

As per a report of Financial express2, More than 3,000 individuals lost their lives along with 4,000
people who were injured, due to accidents caused by Potholes or poor maintenance of roads by the
concerned authorities, in the year 2017 in India . Majority of such cases have been reported from
the state of Uttar Pradesh, Haryana & Maharashtra. This signifies that Potholes caused the deaths of
almost 10 individuals every day in the year 2017, which is horrendous.

In the case, Sobat Singh v. Ramesh Chandra Gupta & Anr.3, the Delhi High Court observed :

1Road Traffic Deaths Data By Country, World Health Organisation, (July 13, 2020, 3:20 PM), https://apps.who.int/gho/
data/node.main.A997?lang=en.
2 Krishnanand Tripathi, Road Accidents in India, Financial Express (July 13, 2020, 4:40 PM), https://
www.financialexpress.com/india-news/more-than-2000-people-killed-in-road-accidents- caused-by-potholes-3-states-
account-for-maximum-deaths/1782391/.
3 Sobat Singh & ors. v. Ramesh Chandra Gupta & Anr., LNIND 4977, (DEL : 2014).
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“India has dubious distinction of having worst record of road accidents. According to the latest
Road Transport Ministry report, a total of 4,90,383 road accidents were reported in 2012 resulting
in 1,38,258 deaths i.e. an average of one road accident every minute resulting in one death every
3.8 minutes which is highest in the world. Road accidents are a human tragedy which involves high
human suffering and they impose huge socio-economic costs in terms of untimely deaths, injuries
and loss of potential income. The ramifications of road accidents can be colossal and its negative
impact is felt not only on individuals and their families but also on the economy. According to the
report of World Health Organisation, the road accidents constitute highest cause of death in the age
group of 15 to 29 and third highest in the age group of 30 to 42. Consequently, road safety is an
important issue of national concern”.

The victims are unfortunate in two senses, first being a part of an accident and second, for the
struggles which they had to go through for claiming the compensations from the concerned
authorities4 .

Pothole Deaths are not only caused due to the road traffic but is also caused due to severe
negligence of municipal corporations, as they leave the potholes uncovered and many cases have
been reported of children being fallen in the pothole which resulted in their deaths. The limit is
reached when the concerned departments even refuses to acknowledge there negligence but rather
blames the deceased himself in majority of the cases.

Using cross sectional data, Majority of which have been derived from documented content along
with primary data being collected through the researcher through various concerned authorities (i.e.
PWD, Municipal Corporations, Police stations) this research will enumerate and focus on the issues
mentioned above and will throw light upon different aspects dealing with pothole deaths in India.

4 id.
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 DEATHS OF MINORS BY VIRTUE OF NEGLIGENT TREATMENT OF
POTHOLES IN INDIA

Potholes at times are the immediate cause of death among children and the rest of the times they are
the remote cause of the deaths or the injuries sustained by the children but in either of the case the
harm suffered both mental and physical is unreasonable and absurd because all of it could have
been avoided just by putting in a little care by the concerned governmental authorities.

Among children, though not all but majority of the cases of deaths or injury is due to the public
nuisance unattended or due to the negligence of the concerned authorities because the mishap due to
Potholes could have been prevented by adjudicating proper care by the authorities who are
responsible for maintaining reasonable care of potholes.

There are several cases being reported of kids deaths due to potholes. Its high time that the
corporations instilled with maintaining potholes should come to term with the fact, that these deaths
are not accidents but rather are murders being conducted by these corporations due to their
negligent conduct.

Some instances of kids deaths due to potholes are :-

a) Sachin (10 years of age) & Kamini (15 years of age) both these kids died due to fall in a pothole
on Mumbai Nashik highway5.
b) Three Pothole deaths were occurred in the city of Thane, Maharashtra, in the year 20196.
c) In 2019, during the month of July one kid feel in the pothole at Bharatbhai Chawl, left open by
Brihanmumbai Municipal Corporation (BMC) negligently, without there being any caution
signs, and shockingly, on 15th July, 2020, BMC puts up a poster barring their responsibility
from kids falling in the potholes, which is totally unacceptable on the part of any municipal
corporation as it is there responsibility to make sure that no pothole is treated carelessly or
negligently.

5FPJ Bureau, Thane Pothole: 2 kids dead, parents badly injured, Free Press Journal, (July 13, 2020, 2:40 PM), https://
www.freepressjournal.in/cmcm/thane-pothole-2-kids-dead-parents-badly-injured.
6Megha Pol, Mumbai sees 3rd pothole death in a month; blame game starts, Hindustan Times,(July 12, 2020, 11:07
AM), https://www.hindustantimes.com/cities/thane-sees-3rd-pothole-death-in-a-month-blame-game-starts/story.
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There are several other instances where the due to negligent behaviour of concerned authorities (i.e.
Public Works Department (PWD), Municipal Corporations etc). The citizens had to suffer with the
loss of life of their loved ones. It is high time now, Municipal Corporations and other concerned
authorities should make sure that no life is lost due to their negligent and careless conduct and that
its high time now that, Indian citizens can expect reasonable care from these concerned authorities.

DEFENCES OPTED BY GOVERNMENT INSTRUMENTALITIES

In the situation of such a mishap, when the Concerned authorities are being approached by the
family of the deceased for claiming compensation for the negligent acts of the concerned
department cause of which they have lost a loved one or may be the bread earner of the family, The
audacity of these departments that instead of accepting there negligent act and providing the family
of the deceased with the necessary relief, they come up defences explaining there acts. In most of
the cases they even refuse to provide any kind of compensation to the deceased’s family, so the
family which is already in trauma from the loss of their loved one are not left with any other option
but to approach courts, for seeking the compensation.

In developed countries, insurance companies, immediately, upon being notified of the accident,
make their inquiries, voluntarily assess and pay the compensation to the victim. The matters go to
the Court only where the insurance company denies the claim or where the victim is not satisfied
with the quantum of compensation paid. Whereas in India, the scenario is exactly adverse. the
insurance companies, or the concerned departments plays the blame game on one another. For
instance in Anitha & ors. v. BWSSB Cauvery Bhavan Bangalore & another7 , the deceased K.R.
Keshavamurthy was riding the Kinetic Honda, and due to an uncovered, unmarked and unguarded
Manhole in the middle of the road, he met with an accident and succumbed to certain injuries,
subsequently died the next day, in this case, the excuse adopted by the Insurance company was in
respect to third party insurance and as no third party is been hit they are not responsible for the
claim, Bangalore Water Supply and Sewerage Board (BWSSB) subsequently contended by stating
that the manhole was neither constructed by it nor was it maintained by it, hence they are not

7 Anitha & ors. v. BWSSB Cauvery Bhavan Bangalore & another, (4)KCCR 2539 (Karnataka High Court : 2009).
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responsible, Bangalore Municipal Corporation (BMC) contended by stating that the accident is the
result of Rash and negligent driving of the deceased itself and hence they are not responsible.
Although the High court held the decision in favour of the claimant and against BWSSB and BMC.
Though the claim has been awarded to the deceased’s family but they had to go through lot of
struggle which they shouldn’t have if the concerned authorities were doing there job with
reasonable care and a little honesty.

Similarly, In Marakkar & Another v. State of Kerala8 , Rafeeq was returning home from attending
his classes where he met with an accident by falling in a pothole and on the subsequent day he died
due to a head injury caused by the accident, the road was being maintained by PWD, Rafeeq was 17
years of age, and also use to help his father running there tea shop. As per the family of the
deceased, several complaints were already made to PWD earlier, regarding the deteriorating
condition of the said road, had PWD taken some steps to repair the road the mishap could have been
avoided. On the contrary in this case the defence taken by PWD was the regarding the non -
existence of the Pothole and that the road was maintained properly and regularly. Though, in this
case as well, after examining all the evidences the Kerala High court decided to grant compensation
to the claimant’s (i.e. The Family of the deceased).

From the above stated case discussions it is apparent that, majority of the times the defences used
by the concerned authorities, are just for the sake of using the defences instead had they been doing
there duties so sincerely while applying reasonable care, there would have been no loss of life, there
would have been no cases of compensation. But, they just fail to understand.

CALCULATION OF COMPENSATION GRANTED BY VIRTUE OF

POTHOLE DEATHS IN INDIA

Now, when the court decides in favour of the Claimant’s, then another question arises, What is the
amount of compensation to be awarded to the deceased or the legal representatives of the
deceased ?

8 Marakkar & Another v. State of Kerala, (4) ILR 681, (Ker.: 2009).
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There are basically two types of victims in motor accidents :
a) Who will be able to get compensation.
b) Those, who will not be able to get compensation.

The individuals hit by an insured vehicle and if the vehicle is identifiable or recognisable, then the
victim falls under the first category and if the victim is hit by an uninsured vehicle or if it is a case
of Hit and run where the vehicle is unrecognisable or unidentifiable thereupon, the victims in this
category falls under second category of victims9. Around twenty percent of the victims fall under
the second category, except for those covered under Section 140 or Section 161 of Motor Vehicles
Act, 1988.

In case of Rajesh Tyagi v. Jaibir Singh10, the court appointed a committee which embodied, the
Secretaries of the Ministries of Road Transport and Highways, Finance, Law & Join commissioner
of Delhi Police to formulate a system of Claims Tribunal Agreed Procedure, which came into force
in Delhi. The Tribunal provided a procedure as per which, initially the police was suppose to carry
out complete investigation within thirty days and submit a Detailed Accident Report (DAR) to the
Motor Accident Claims Tribunal, then the Insurance Company will calculate the amount of
compensation within thirty days and finally if the claimant is satisfied by the amount offered then
he/she shall notify there acceptance within thirty days and if unsatisfied then or if the tribunal is not
satisfied by the amount of compensation then the respective tribunal shall pass an award within next
thirty days.

But in cases relating to Pothole deaths, there are no insurance covers, covering the unfortunate
accidents that occur due to the existence of Potholes. There are no separate tribunals nor there is any
separate law dealing with the issue of calculating the amount of compensation occurred due to
accidents arising out of neglected potholes. Though, there are cases where the courts have provided
with methods of calculating compensations arising out of the accidents occurred due to such
neglected potholes

9 Jai Prakash v. National Insurance Company, 2 SCC 607, (2010).

10 Rajesh Tyagi v. Jaibir Singh, 4 ACC 847, (2010).
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In the case of C.K.S. Iyer & ors. v. T. K Nair& ors.11, the court held that :-

"Compulsory damages under S. 1 A of the Act for wrongful death must be limited strictly to the
pecuniary loss to the beneficiaries and that under S. 2, the measure of damages is the economic loss
sustained by the estate. There can be no exact uniform rule for measuring the value of the human
life and the measure of damages cannot be arrived at by precise mathematical calculations but the
amount recoverable depends on the particular facts and circumstances of each case. The life
expectancy of the deceased or of the beneficiaries whichever is shorter is an important factor. Since
the elements which go to make up the value of the life of the deceased to the designated
beneficiaries necessarily personal to each case, in the very nature of things, there can be no exact
or uniform rule for measuring the value of human life. In assessing damages, the Court must
exclude all considerations of matter which rest in speculation or fancy though conjecture to some
extent is inevitable. As a general rule parents are entitled to recover the present cash value of the
prospective service of the deceased minor child. In addition, they may receive compensation for loss
of pecuniary benefits reasonably to be expected after the child attains majority.”

Further, in the case of Sumati Debnath v. Sunil Kumar Sen12 , the Gauhati High Court cited the
above case for calculating the compensation to be awarded to the mother of the deceased who was a
sixteen year old boy and had lost his life due to the injuries sustained during the accident which
occurred by virtue of unattended or negligent conduct of the concerned authority in maintaining the
pothole at the main road. In this case High court, estimated the life of deceased’s mother upto
Seventy Years, as her age at the time of the case was Fifty years. She was granted the compensation
for the period of Twenty years by estimating the earnings of the deceased to be Rs. 1,800/- per
annum.

In terms of contriving the compensation amount Lord Wright said,“the actual pecuniary loss of
each individual entitled to sue can only be ascertained by balancing on the one hand the loss to him
of the future pecuniary benefit, and on the other any pecuniary advantage which from whatever
source comes to him by reason of the death13”

11 C.K.S. Iyer, T. K Nair, AIR 376, (1970).

12 Sumati Debnath v. Sunil Kumar Sen, AIR 59, (Gau.:1994).
13 Davies v. Powell Duffryn Associated Collieries Limited, A.C. 601, (1942).
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As per Lord Wright The starting Point in calculating the compensation should be the amount of
wages of the deceased, then to determine the regularity of such wages while deducting the
personnel expenses which the deceased would have spent on his living which will be taken as lump
sum through the estimating a certain number of years purchase. Further, the amount must be
reduced by taking in account the uncertainties, like the benefits if any which the legal
representatives will be entitled to after the death of the deceased, and then eventually an amount of
compensation can be ascertained to be awarded to the legal representatives. Similar Principles were
adopted by Supreme Court of India in the case of Gobald Motor Service Ltd. v. R.M.K.
Veluswami14 for determining the compensation amount.

RES IPSA LOQUITUR

In the accident cases there are many factors which could lead to the road accidents, such as
Drunken Driving, Over speeding, Rash and Negligent Driving, Potholes on the road etc. Hence, it
becomes a strenuous as well as a crucial task for the Judges to assess the actual cause of the
accident.

The principle which have been preferred by Judges for deciphering this dilemma relating to the
accident cases, in most of the cases is Res Ipsa Loquitur Which is a latin phrase and a doctrine of
Anglo American common law as per which in a suit of negligence the court can infer the act of
negligence through the acts itself, It basically means “the act speaks for itself”.

There are several cases where the courts have seemed to apply this principle for deciphering,
whether the negligence has been committed by the state or Governmental bodies in disseminating
there duties of care or not ? Below mentioned are the cases, where this principle of Res Ipsa
Loquitur has been applied.

In the case Darshan v. Union of India15” there was a manhole left uncovered at red fort due to the
dereliction in discharging the duties by the government Instrumentalities, as a result of this
dereliction a death trap was left open in the public road which subsequently led to the death of

14 Gobald Motor Service Ltd. v. R.M.K. Veluswami, AIR 1, (1962).

15 Darshan v. Union of India, ACJ 578, (2000).
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Skattar Singh. In this case the negligence was ascertained by the court through applying the
principle of Res Ipsa Loquitur. The court in this case lead to the conclusion that it is due to the
failure of state instrumentalities is discharging their duties with reasonable care. This negligent act
deprived Skattar Singh his right to life guaranteed under Article 21 of the constitution.

Whereas, in the case Klaus Mittelbachert v. East India Hotels Ltd.16 three conditions were
specified for attracting the doctrine of Res Ipsa Loquitur. They are :
a) The accident must be of kind which does not ordinarily occur in absence of someone’s
negligence,
b) It must be caused by an agency or instrumentality within the exclusive control of negligence.
c) It must not have been due to any voluntary action or contribution on the part of the victim.

Further, in the case Gorringe v. Calderdale MBC17, House of lords held that a highway authority
can be held liable for the dangers which have been introduced by the failure to discharge reasonable
care by highway authority or incase of a third party which it has failed to subside. The citizens or
individuals drive car on highway with a belief that reasonable care would have been taken by the
concerned authorities and they are entitled to expect the same. Hence, they are entitled to complain
in case when such concerned authorities fail to discharge there duties accordingly.

OTHER FACTORS AFFECTED BY POTHOLES

In this subheading, the endeavour of the researcher is to delve into the auxiliary aspects afflicted by
the virtue of potholes.

A. Is COVID - 19 an opportunity to heal ?

One of the affirmative aspect of COVID -19 pandemic is that it has reduced the traffic significantly.
As per the study conducted by Road Ecology Centre at the University of California, the decision of
lockdown has turned out to be conducive step, from the perspective of road accidents, as the state is
saving Forty millions dollars per day as a result of which fifteen thousand fewer cases of collisions

16 Klaus Mittelbachert v. East India Hotels Ltd., ACJ 287, (1999).

17 Gorringe v. Calderdale MBC, 2 All ER 326, (2004).
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have been reported per month on the state’s roads and highways. As per the study, approximately
six thousand people aren’s being injured or killed in accidents, post the issue of lockdown orders.

Utilising, this period of lockdown majority of the states (i.e. New York, New Jersey, Pennsylvania,
Illinois and California) in United States of America have started repairing the potholes in their
respective states, as pothole repairs comes under the necessary infrastructure in their states18.

Whereas, when compared to Indian scenario, the economy is not strong enough to cope with the
pothole repairs all across the country as, there is heavy reduction in the income of the government
by the virtue of tax, decreased fuel consumption, therefore, at this time of pandemic repair of
potholes cannot be contemplated from the government, on the contrary, there can be no denial of the
fact that this has provided the government with the opportunity to cope with this major issue arising
out of potholes every day of every month of every year. Hence, it is expected form the government
to utilise this time of pandemic to solve the issues which otherwise becomes a very hectic or next to
impossible task for the government.

B. The cost of car damages from potholes.

Another crucial factor affected by the pothole’s is the condition of the vehicle, which passes over a
pothole, according to American Automobile association (AAA) Pothole damages cost a total of
about three billion dollars per year19 . The affect that potholes incur on vehicles are :

a) Fuel Efficiency : First and foremost, Potholes affects the fuel efficiency of the vehicles, as by
virtue of potholes the drivers are forced to drive the vehicle at lower gears, this leads to lot of
fuel consumption by the potholes themselves.
b) Tyres :- Another aspect affects by or damaged due to potholes are the tyres of the cars. Due to
potholes, the tyres get punctured or the sidewall of the tyre gets ruptured, which makes the tyres
irreparable.
c) Wheels/Rims :- The rim gets bent, or gets fractured due to the impact on the wheels of the
vehicle experiencing the pothole bump.

18COVID -19 Traffic Reductions: Pothole Repairs Easier, Pothole, (July 11, 2020, 3:17 PM), https://www.pothole.info/
2020/04/covid-19-traffic-reductions-pothole-repairs-easier/.
19 id.
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d) Suspension :- The importance of the suspensions in a vehicle is to provide a smooth ride to the
rider, but due to potholes the suspension of the vehicle could undergo misalignment or broke
ball joints and damaged shocks and struts.
e) Exhaust :- The exhaust pipes of the vehicle passes through the underbody of the vehicle,
potholes causes the risk of causing dent at the exhaust pipe.

The owners may or may not have the insurance cover for the damages incurred on the vehicle due
to potholes but they sure has to invest there time in getting the repairs on the vehicles done which
they wouldn't have to in case the potholes were properly maintained.

CONCLUSION

In order to amplify the study, researcher collected the primary data from the Public works
Department, Gwalior (MPPWD), Gwalior Municipal Corporation (GMC), Superintendent of
Police’s Office, Gwalior & through the RTI bearing registration No. RTI15945694647471 & on the
basis of data collected the researcher reached to the conclusion that the main loophole behind the
increasing number of pothole deaths in the country is the lack of proper accounting of funds allotted
to these concerned government instrumentalities which leads to lot of funds being misplaced
unnoticed in the form of corruption.

As per Assistant Drafts Man (ADM) Ashwini Gupta (GMC), it takes around 25 lakhs to 30 lakhs in
constructing one km of concrete road, and in Gwalior (M.P.) around 60 km road has been
constructed in the previous year but even the officials of the GMC are not aware about the amount
of funds received by GMC from the concerned government for the previous year (i.e. 2019 - 2020),
which indicates towards the lack of auditing & lack of awareness.

The researcher further suggests the propagation of awareness about the funds being allocated to the
concerned department by way of a notice in that particular departments, so that every official of the
concerned department are aware of the amount of work done as per the funds sanctioned, and the
misplacement of the funds does not go unnoticed.

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Further India being the leading country in terms of road accidents, and deaths caused due to
potholes, the government should enact certain specific provisions dealing with the aspects of
potholes, such as the aspects relating to insurance claims in case of deaths by the virtue of potholes,
Insurance claims in case of motor vehicle accidents caused to due to the presence of potholes should
not be restricted to certain insurance provisions only rather should be compulsorily included all
types of insurance policies relating to motor vehicles at least. Provisions dealing with potholes
needs to be included in Motor vehicles act.

As per the notice dated 15th July, 2020 of BMC near Bharatbhai chawl, Mumbai, they have
disbarred there liabilities, responsibilities and duty of reasonable care in case of a kid falling in the
open Potholes, this is horrendous, such kinds of behaviour shouldn’t be promoted but rather the
question which needs to be asked is why cant the concerned authorities apply reasonable care so
that no-one falls in the open pothole at first place.

Another suggestion which the researcher would propose is that the punishments to the concerned
officials should be made more stringent, so that the officials realise the gravity of the issue, it is the
life of several individuals at stake, its time that concerned authorities understand it and realise it by
way of an enactment including stringent punishment not against the department but against the
concerned officials. The punishments need to be serious in order for them to realise the seriousness
of the issue.

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