DALTON S.P.J.—Hooper v. John.
1934Present: Dalton SJPJ.
HOOPER v. JOHN484—M. C. Colombo, 5,700
Motor car—Private car hired by owner—Charge against' driver—Mens rea—Payment of batta to driver—Fee or reward—Definition of hiring—Ordinance No, 20 of 1927, s. 30 (I).
The driver of a private car, which was hired by its owner, cannot bec'onvicted of using the car for a purpose not authorized by the licencein the absence of evidence to show that he knew that the car had beenhired.
In the circumstances batta paid to the driver of the car is not a “ feteor reward ” within the meaning of the definition of “ hiring car ” in theMotor Car Ordinance.
PPEAL from a conviction by the Municipal Magistrate of Colombo
A. Rajapakse (with him A. Wijeyeratne), for accused, appellant.
M.F. S. Pulle, C.C., for Attorney-General, on notice.
Cur. adv. wilt.
October 5, 1934. Dalton S.P.J.—
When this appeal came before me on August 23, as there was noappearance on behalf of the respondent, the Sub-Inspector of Police,Fort Police, I directed that notice be given to th6 Attorney-General,and Mr. Pulle, Crown Counsel, now appears as amicus curiae.
The appellant has been convicted on a charge, as driver of private carNo. 0-201, of using the car in York street, Colombo, for a purpose notauthorized by the licence in force for the use thereof, i.e., for hire onApril 23 last, contrary to the provisions of section 30 (1) of OrdinanceNo. 20 of 1927.
DALTON SJ*J.—Hooper v. John.
The Magistrate has found on the evidence, and there is ample evidenceto support these conclusions, that the car, a private car, belonged toD. H. F. Perera, owner and manager of the King’s Hotel, Kandy, thatthe car was hired out by the owner to a commercial traveller from India,named Henny, for use in Kandy and Colombo, that accused, Perera’sdriver, was employed to drive the car, and that accused was drivingHenny in the hired car at the date and place mentioned in the charge.Henny undertook to pay, in addition to the sum of Rs. 7 a day to Perera,the cost of oil and petrol, and also Rs. 2 a day as batta to accused asdriver.
Whether or not any proceedings have been taken against the ownerof the car or the hirer I do not know. The former of course was awarehis car was a private car and that the terms of the licence did notauthorize it being hired out, but the latter as a visitor states he hadno knowledge whether it was a hiring car or a private one. The question,however, that has to be decided in this case is whether the driver wasusing the car contrary to the provisions of section 30. The Magistratecorrectly points out that the answer depends upon the further questionwhether or not he was aware that his master had hired the car, a privateone, to Henny. The evidence shows that accused asked his masterwhether he was to collect any hire and the answer given to this questionwas “ No ”. Mr. Pulle suggests that answer may be untrue, but thereis no evidence that any- other answer was given to the driver. TheMagistrate says the question and answer are very significant and showa guilty knowledge in accused. I regret I am unable to agree that theinference drawn from this question and answer is, in the circumstances,a reasonable one. The accused may perhaps, on the evidence, havehad some suspicion that the car had been hired to Henny, but it showsnothing more. To say, as has been said, that the accused should haveasked his master on what terms the car had been given to Henny mightwell have laid him open to the rebuke from Perera to mind his ownbusiness.
Mr. Pulle states he cannot support the conviction on the reasonsgiven by the Magistrate, but he argues that the conviction was correcton grounds other than those given by the Magistrate. He agrees thatmens rea in the accused must be proved, but he argues that it has beenproved and that the offence has been committed by the accused becausehe received batta at the rate of Rs. 2 a day from Henny. This battahe says, under the agreement between Henny and Perera, is part of theamount of the hiring to be paid by Henny, and since accused himselfreceived the batta from Henny, he had knowledge of the hiring and sowas liable under the section.
If there is anything in this argument, and I have been referredto the decision in Meedin v. Perera which Crown Counsel sayssupports him, it has to be shown as Mr. Pulle agrees, that Pererawas liable, under agreement with his driver, to pay the latter battaat the rate of Rs. 2 a day, and that under his agreement with Perera,Henny took over this liability as part of the contract of hire. There is,however, no evidence of any agreement by which Perera was liable to.
1 88 N. L. B. 88.
MAARTENSZ J.—Sivapakiam v. Sivapakiam.
pay his driver Rs. 2 a day or any batta at all. Section 2 (1) of the MotorOrdinance defines "hiring car” as one that is used for the conveyanceof passengers for fee or reward. There is no evidence in this case thatPerera the owner derived any advantage in the way of a fee or rewardby the payment by Henny of batta to the driver. There is no suggestionthat there was any hiring by the accused himself.
For the above reasons the conviction of the accused cannot stand.The appeal is allowed and the accused is acquitted.
HOOPER v. JHON