GANNON J.—Rodrigo and Abeygunawardene.503
1943Present: Cannon J.
RODRIGO, Appellant, and ABEYGUNAWARDENE, Inspector ofPolice, Respondent.
153—M. C. Gamp aha, 15,554.
Omnibus—Carrying passengers on an unauthorised road—Proof that passen-gers were carried for reward unnecessary—Motor Car Ordinance, No. 45of 1938, s. 83 (2).
Where the accused was charged with carrying a number of passengers,in an omnibus on an unauthorised road which afforded the bus the onlymeans of access to its garage,—
Held, that the accused had offended1 against the provisions of section83 (2) of the Motor Car Ordinance irrespective of-whether the passengerswere carried for reward or not.
^ PPEAL. from a conviction by the Magistrate of Gampaha.
Clement de Jong for accused, appellant.
G. E. Chitty, C.C., for respondent.
Cur. adv. vult.
June 11, 1943. Cannon J.—
The appellant was charged on two counts, namely : —
Driving a bus on an unauthorised road contrary to section 83 (2) of
the Motor Car Ordinance, No. 45 of 1938 ; and
At the same time and place driving the bus with passengers on this
unauthorised road (which affords the bus the only means ofaccess to the garage) contrary to regulation 6 (2) made undersections 82, 83, and 174 of the Motor Car Ordinance, No. 45 of1938.
The regulation referred to in the second charge is an exception to thesection referred to in the first charge. The exception permits a bus to goon an unauthorised road which is the only means of access to its garage,provided that the bus carries no passengers on that road. The defencewas that although there were a number of people in the bus,- they were notpassengers within the meaning of the Ordinance, because they were notbeing carried for reward. The Magistrate dismissed the first charge andconvicted on the second charge. The main ground of appeal is that, therewas not sufficient evidence to justify the Magistrate’s finding of factthat some of the people in the bus were being carried for reward and thequestion has arisen whether or not it was necessary to prove that theywere, in fact, being carried for reward. The Ordinance in section 175defines “ passenger ” as a person carried in a hiring car excluding thedriver, or in the case of an omnibus, a conductor. An omnibus is definedas a hiring car having seat accommodation for more than seven passengers.A “hiring car” is defined as a motor car used for the conveyance ofpassengers for fee or reward.
It was submitted for the appellant that taking the two definitions of“ passenger ” and “ hiring car ” together, no offence was being committedunless the passengers were being carried for fee or reward. For the
504CANON J.—Rodrigo and Abeygunawardene.
respondent, Mr. Chitty points out that the definition of “passenger”makes no reference to fee or reward and submits that the character of thevehicle as an omnibus does not change according to whether the peoplebeing carried in it pay or do not pay. A finding to the contrary woulddefeat the purpose of the legal provisions mentioned in the charges,which are obviously made for the safety of the travelling public. In myview the words in the definition of hiring car “ used for the conveyance ofpassengers for fee or reward ” are not limited to the period of timeduring which the bus is actually carrying passengers for reward andtherefore the words “ for fee or reward ” cannot be added to the definitionof “ passengers ”. On the admitted evidence that a number of peoplewere in the bus other than the driver and the conductor, the Magistratewas therefore entitled to convict. The conviction should, however,have been on the first charge, the regulation forming the subject of thesecond charge- being merely a permitted exception to the section in thefirst charge. It was an available defence for the accused, which defencewould have failed when it was shown that there were a number of peoplein the bus other, than the driver and the conductor. The Magistrate’sdecision must be amended so that the conviction will be recorded as beingon the first, not on the second charge, the penalty remaining the same.Subject to this amendment the appeal is dismissed. A relevant Englishdecision is Hawkins v. Edward
a (1901) 2 K..B. 169.
RODRIGO, Appellant, and ABEYGUNAWARDENE , Inspector of police, Respondent