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KARUNARATNA v. KIRA.P. C., Negombo, 32,598.
Vehicles—Ordinance No. 9 of 1901, s. 42 (2)—" Used for hire or reward. "
A who had contracted with B to fell and saw timber growing on B'sestate, and to transport the same to ^nd deliver it at another placefor a consolidated charge at so much per cubic foot, cannot use his owncarts for the fulfilment of the contract without having obtained a licensefor the transport.
The owner of the carts as well as the drivers are liable for the use ofthem for transport.
HE accused were charged with driving vehicles which carriedtimber without a license and thereby committing an offence
punishable under section 42. sub-section 2, of the Ordinance No. 0of 1901.
It appeared that the accused were cart drivers employed by oneJohn Perera, who claimed the carts seized as his private property;that he had contracted with the Conservator of Forests to furnishhim with Crown timber cut, sawn, and delivered at Re. 1.27 percubic foot; that the transport was to be from Mirigankanda toBadalgama and Muniyangoda; and. that his contract did notspecify the charges allotted for sawing, cutting, and removing thetimber.
The Police Magistrate, Mr. F. A. Wijeyesekera, held that assection 6 of the Ordinance No. 9 of 1901 provided that the ownerof vehicles used for the purpose of conveying or transporting byland goods or merchandise from any place to any other place forhire or reward should apply for a license, the accused’s cartsought to have been licensed as cars plying for hire, seeing thatthe consolidated rate of Re. 1.27 per cubic foot included transportcharges payable to the accused by the Forest Department. TheMagistrate sentenced each of ti/e .accused to a fine of Rs. 10.
The accused appealed. The case was argued on 2nd September,1903.
Allan Drieberg, for appellant.—The intentionof' the Ordi-nance as seen in section 44*is to cast on common carriers only theduty of taking out a license. The contractor for whom theaccused drove the carts is not a eorymon carrier, is not one who isobliged by law to let his cart forj hire (Gibson v. Silva., Ram.1848, p. 105). The contractor did not give his cart on hire, nor did
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1903. the fact of his making a living on profit by the transport constituteSeptembers- such living or profit “ reward ” under section 6.
Macnamara On Carriers, p. 11; Ordinance No. 3 of 1848, section2 (“ public business ”); Ordinance No. 14 of 1865, section 6(“ hire ”); and Ordinance No. 17 of 1873; were referred to.
Bimanithan, K. C., for respondent.
Cur. adv. vult.
8th September, 1903. Wendt, 'j.—
.This .appeal raises a question under the Vehicles Ordinance,1901. One D. J. Perera has entered into a contract with the Govern-ment to fell and saw to certain dimensions timber growing in aCrown forest at a place called Mirigankanda, and to convey anddeliver such timber at certain other specified places. For this hereceives payment at a consolidated rate of so much per cubic footof timber delivered. The contract does not apportion the paymentamong the several operations performed in connection with thetimber, but the Magistrate has found that the greater portion ofthe payment was due in respect of the transport. For the con-veyance of the timber Perera employed carts belonging to himselfand exclusively used for his own business as such contractor.On 15th July, 1903, two of these carts, driven by the two appellantsand laden with sawn timber, were proceeding from Mirigankandato Negombo, where Perera had to deliver the timber, when theywere seized by a headman, who charged the appellants with anoffence under sub-section 2 of section 42 of the Ordinance No. 9of 1901. The appellants were carters regularly employed byPerera to drive these carts. The Magistrate convicted them andfined them Rs. 10 each, with the alternative of a week’s imprison-ment.
Appellant’s counsel contended that the carts in question did notrequire ,to be licensed under the Ordinance, because they were not“ used for hire or reward ” within the meaning of section 6. Heargued first that using a cart as Perara did, for the purposes of hisown business, was equivalent to using it to transport his owngoods, like transporting the produce of his own estate to marketfor side; and secondly, that the use contemplated by the Ordinancewas use as a business., I am against both these contentions. Itis not for a liioment suggested that Perera carried the timbergratuitously, and although the exact sum paid for carriage cannotbe ascertained, it is clear that some part-r-the Magistrate believes asubstantial part—of the total payment is remuneration for trans-port. Such remuneration certainly is “ reward ” in the le'galsense, even if it be not “ hire. ” •
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The second contention is. apparently suggested By the decision 1903.of this Court in Gibson v. Silva (Ram 1848, p. 105). But that Septembers.was a decision under the Ordinance No. 3 of 1848, which (section Wendt, J.2) necessitated a license only in the case of carriages “ used forthe conveyance for hire as a public business ’’ of goods or passen-gers. Those words were very soon repealed by Ordinance No. 23of the same year, and have not been reepeated in any of the laterenactments on the subject. The carts in question, then, were“ used for the purpose of conveying or transporting by land goodsfrom any place to any other place for J|ire or reward, ” and conse-quently required a license.•
But did the appellants use or permit or suffer the use of the•carts as contemplated by section 42, sub-section (2)? The* occur-rence of the words “ without having obtained a license therefor ”seems to indicate that the offence is committed only by the owner,for it is the owner only who can “ obtain a license ” under sections•6 and 7. If that was the intention of the enactment, then Pererais the principal offender, but the appellants undoubtedly aidedand abetted him in the commission of the offence, and under thecircumstances proved are deemed themselves to have committedit (section 107, Penal Code). In view, however, of the facts thatthey were merely Perera’s servants, and that theirs is a first offence,
I think a nominal sentence will serve the ends of justice. Ireduce the fine to Be. 1 in each case, with a week’s imprisonmentin default of paymient.
KARUNARATNA v. KIRA