De Mel and Another v. Rev. Somaloka
DE MEL AND ANOTHER
COURT OF APPEALWEERASURIYA, J. ANDDISSANAYAKE, J.
CA NO. 664/84 (F)
DC NEGOMBO NO. 4734/MFEBRUARY 15 AND 26, 2001MAY 11, 2001
Damages – Accident – Motor Traffic Act s. 149 (1), s. 151 (3) – Plea of guiltin the Magistrate's Court – Does it amount to an admission – Negligent driving- Evidence.
The plaintiff-appellant claimed damages for causing the death of one N resultingfrom an accident in which he suffered injuries by being knocked down by thevan driven negligently by the 2nd defendant-respondent. The 1st defendant-respondent was the registered owner of the vehicle. District Court dismissed theaction.
The plaintiff-appellants failed to lead evidence in respect of the mannerof the occurrence of the accident.
The charge (in the Magistrate's Court) had been reduced to s. 151 (3)and s. 149 (1) of the Motor Traffic Act. One cannot ascertain with certainityas to items which formed the charge if it was reduced to s. 149 (1).
The charge, 'failure to avoid an accident is prima facie different in formand substance from ‘rash and negligent driving’. There is no reference tothe items which formed the basis for negligent driving in terms of s. 151 (3).
In the circumstances it cannot be said that the plea of guilt to chargeunder s. 149 (1) and s. 151 (3) in the Magistrate's Court can beconsidered as an admission. Admissions must specifically relate to theitems of negligent driving as set out in the plaint.
APPEAL from the judgment of the District Court of Negombo.
Sri Lanka Law Reports
 2 Sri L R
Cases referred to:
Sinnaiah Nadarajah v. Ceylon Transport Board – 79 NLR (2) 48.
Hollington v. Hewthorn & Co., Ltd. – 1943 2 All ER 35.
P. Nanayakkara with T. Alahakone for plaintiff-appellant.
W. Dayaratne for substituted 1st defendant-respondent.
Cur. adv. vult.
August 21, 2001WEERASURIYA, J.
In this action the plaintiff-appellants claimed damages in a sum of 1Rs. 150,000 for causing the death of Gamage Nandasena, resultingfrom an accident in which he suffered injuries by being knocked downby the van driven by the 2nd defendant-respondent (hereinafter referredto as the 2nd defendant). The deceased 1st defendant was sued onthe basis of being the registered owner of the vehicle which was drivenby the 2nd defendant in the course of his employment under the 1stdefendant. The defendants in their joint answer whilst admitting thatthe 2nd defendant drove the vehicle, denied negligence on his partfor the occurrence of the accident.10
This case proceeded to trial on 7 issues and at the conclusionof this case, learned District Judge by his judgment dated 22.11.1984,dismissed the action. It is from the aforesaid judgment that this appealhas been preferred.
At the hearing of this appeal, learned Counsel for the plaintiff-appellants submitted that District Judge has misdirected himself inholding that plaintiff-appellants had failed to lead evidence in respectof the following matters, namely:
occurrence of the accident;
De Mel and Another v. Rev. Somaloka (Weerasuriya, J.)
driving the vehicle by the 2nd defendant; and
the manner of driving the vehicle.
At the commencement of the trial the following admissions wererecorded:
That the registered owner of the vehicle bearing No. 34Sri 765 was the 1st defendant.
(fa) That the accident occurred on 21. 06. 1986 while the 2nddefendant was in the employment of the 1st defendant; and
(c) That at the time of the accident the vehicle was driven bythe 2nd defendant.
In the light of the above admissions, it was wrong for the DistrictJudge to state that there was no evidence in respect of the occurrenceof the accident and that the 2nd defendant drove the vehicle.Therefore, it is manifest that District Judge was in grave error inarriving at the aforesaid findings.
However, the question to be examined is whether there wasevidence relating to the negligent driving of this vehicle by the 2nddefendant. The meaning of the words "manner of driving" used bythe District Judge could be gathered on further examination of thejudgment as pointing to the items of negligent driving as set out inthe plaint. The items referred to in the plaint are as follows:
Failuretotake a proper look out of the road;
Using theroad without consideration of other usersof the
Failuretohave a proper control of the vehicle;and
Drivingatan excessive speed and recklessly.
Learned District Judge has come to a finding that admission ofguilt in a case filed against the 2nd defendant in the Magistrate's Courtis not sufficient to establish negligence as itemised in the plaint.
Sri Lanka Law Reports
 2 Sri L ft
The main contention of learned Counsel for the plaintiff-appellantwas that admission of guilt in case bearing No. 30929 had been sodisregarded by the District Judge as evidence on the issue of negligence.
He cited the case of Sinnaiah Nadarajah v. Ceylon Transport Boardx)in support of his contention.
This case laid down that where the driver of a vehicle is suedalong with his employer for the recovery of damages resulting froman accident in which the plaintiff suffered injuries by being knockeddown, a plea of guilt tendered by the driver when charged in theMagistrate's Court in respect of the same accident is relevant as anadmission made by him and ought to be taken into consideration bythe trial Judge in the civil suit.eo
In that case in addition to the evidence of the plaintiff who wasan eyewitness to the accident the circumstances relating to theaccident were elicited through the officer who had visited the scene.
Further to the above material, the defendant's plea of guilt to thecharge against him in terms of section 149 (1) of the Motor TrafficAct was held as amounting to an admission of the matters itemisedin the charge, namely:
failingtostopor reduce the speed;
failingtokeepa proper look out of the road;and
failingtokeepto the left or near side of thehighway.70
At page 52, reference had been made to a passage from the caseof Hollington v. Hewthorn & Co., Ltd.<2). This passage reads as follows:
"In Hollington v. Hewthorn & Co., Ltd., a conviction of one of
the defendants for careless driving was held to be inadmissible
as evidence of his negligence in proceedings for damages on that
ground against him and his employer. But, "had the defendant
De Mel and Another v. Rev. Somaloka (Weetasuriya, J.)
before the Magistrate pleaded guilt" or made some admission ingiving evidence that would have supported the plaintiff's case, thiscould have been proved but not the result of the trial."
In the instant case, the plaintiff-appellants failed to lead evidence soin respect of the manner of the occurrence of the accident. The policeofficer who testified at the trial merely produced the sketch of thescene drawn by the officer, who proceeded to the scene of theaccident, for inquiry. The reference in this sketch to two points ofcollisions with two other vehicles, has resulted in a state of confusionrelating to manner of sustaining injuries by the deceased.
The proceedings of the case relating to the tendering of the pleaby the 2nd defendant was produced marked P6.
This revealed that the charge had been reduced to sections 151(3) and 149 (1) of the Motor Traffic Act. It is relevant to note that 90the original charge against the accused was for causing death bya rash and negligent act not amounting to murder in terms ofsection 298 of the Penal Code.
It is vital to note that the accused (2nd defendant) was explainedthe charge from the charge-sheet. But, the charge had been reducedto sections 149 (1) and 151 (3) of the Motor Traffic Act. Therefore,one cannot ascertain with certainty as to items which formed thecharge if it was reduced to 149 (1). It is to be noted that chargefor failure to avoid an accident is prima facie different in form andsubstance from rash and negligent driving. There was no reference 100to the items which formed the basis for negligent driving in terms ofsection 151 (3) of the Motor Traffic Act. Therefore, it is not possibleto apply the principles laid down in the case of Sinnaiah Nadarajahv. Ceylon Transport Board (supra) as having relevance to negligentdriving in the instant case. It has to be emphasised that admissionsmust specifically relate to the items of negligent driving as set outin the plaint.
Sri Lanka Law Reports
 2 Sri L ft
Learned Counsel for the substituted 1st defendant-respondentsubmitted that, substituted 1st defendant-respondent as Viharadhipathyis responsible only for the property of the temple and not in respect 110of Pudgalika property of an individual Bhikku in terms of section 20of the Buddhist Temporalities Ordinance and therefore 1st defendant-respondent cannot be substituted in this case.
In view of the above finding in respect of the failure to establishnegligence imputable to the 2nd defendant as itemised in the plaint,it is unnecessary to consider the above contention.
For the foregoing reasons, it seems to me that there is no meritin this appeal, and I make order to dismiss it.
The parties must bear their costs of the appeal.
DISSANAYAKE, J. – I agree.
DE MEL AND ANOTHER v. REV. SOMALOKA