SOERTSZ A.C.J.—Dhanapala v. Mohamed Ibrahim.
1932.Present: Soertsz A.C.J.
DHANAPALA v. MOHAMED IBRAHIM.
208—M. M. C. Colombo, 72,529.
Motor car—Driver of car accompanied by licensed driven—Charges of negligentdriving, driving without a certificate and driving a car with defectivebrakes—Guilt of accused—Motor Can-. Ordinance, No. 20 of .1921, ss. 60 (3),39 (1), 11 (1).
Where the accused who drove a motor car, while a person licensed todrive was seated by his side, was charged—
(1) with having driven the car negligently, (2) with driving a motor carwithout a certificate of competence, (3) with driving a motor carwith defective brakes,—
Held, that the mere presence of the licensed driver did not exemptthe accused from liability for negligent driving or driving a car withdefective brakes.
Held, further, that the accused was not guilty of driving a car withouta certificate of competence in view of the proviso to section 39 (1).
PPEAL from an acquittal by the Municipal Magistrate of Colombo.
D. Jansze, C.C., for complainant, appellant.
No appearance for accused, respondent.
June 20; 1939. Soertsz A.C.J.—
The accused in this case was charged with certain offences under theMotor Car Ordinance, No. 20 of 1927. He was charged with having
• 3 C. W. R. S-3S.
SOERTSZ A.CJ.—Dhanapala v. Mohamed Ibrahim.
driven, a motor car negligently, punishable under section 57 (3), newsection 60 of the Ordinance, secondly, with driving a motor car without acertificate of competence, punishable under section 37 (1), new section39 (1) of the said Ordinance, and thirdly, with driving a motor car withdefective brakes, punishable under section 10 (1), new section 11 (1) ofthis Ordinance.
It would appear that the accused was driving this motor car while aperson licensed to drive it was seated by his side. Notwithstanding thesupport, moral and other, that this proximity of a duly licensed drivermight be assumed to have given this driver who had no licence, hesucceeded in a short space of time in going on the wrong side of the road,knocking down a man called Ramakutty, an employee of a hotel whowas standing within a foot of the kerb, and then showing that he was norespector of persons, he knocked down a beggar—I am informed that thedriver contributed to this part of the achievement by interfering withthe driving wheel himself—and then eventually either one or other orboth of them succeeded in knocking over a bicycle, and quite pleased withtheir performance they brought the car to a standstill. In these circum-stances the charges I have mentioned were laid against the accused. Butthe learned Magistrate, to whom an extract from some Australian casewhich is reported in some digest was cited, made up his mind that thatcase applied and enabled him to acquit the accused on the ground that,while the accused was on this frolic of his, there was seated by him a dulylicensed driver.
Now it is perfectly clear that if this is good law, that the consequencesmust be startling. One has only to take the precaution of having alicensed driver by one’s side in order to be able to knock down everysecond man one came across and to plead that one was not liable becausethere was a licensed driver by one’s side. The section itself 57 (3) whichis the new section 63 says that anyone who drives a car negligently isliable to be dealt with under that section regardless of how that personwas situated at the time he was driving, whether he was driving in splendidisolation or whether he had a licensed driver seated by him at the time.The matter is however different in regard to the charge preferred againstthe accused that he drove without a certificate of competence. In thatcase the proviso to section 37 (1) new section 39 (1) enables a person todrive without a certificate of competence provided a licensed driver isby his side so that the accused was rightly acquitted of that charge. Inregard to the other charge of driving with defective brakes it does not makeany difference whatever that, at the time the car which the person chargedwith driving, is found with its brakes defective, the licensed driver is alsopresent in the car. In regard to that offence the person actually drivingis liable as the driver under section 85 (1).
I therefore, affirm the acquittal entered by the Magistrate in regard tothe charge of driving without a certificate of competence. I set aside theorder of acquittal in regard to the other two charges and send the caseback for the Magistrate to impose such sentence, as he thinks fit afteraddressing himself to the matter.
DHANAPALA v. MOHAMED IBRAHIM