DOOLE v. ZUBAIR

046-NLR-NLR-V-37-DOOLE-v.-ZUBAIR.pdf


242
Doole v. Zubair.
1935
Present: Soertsz A.J.
DOOLE v. ZUBAIR.
202—P. C. Kegalla, 26,351.
Motor omnibus—Carrying goods in excess of limit prescribed by licence—Liability of conductor and not the driver—Motor Car Ordinance, No. 20of 1927, s. 62 Cl).
The conductor of an omnibus and not the driver is liable for carryinggoods in excess of the prescribed limit under rule 6 (3) of the rules inSchedule IV of the Motor Car Ordinance.
PPEAL from a conviction by the Police Magistrate of Kegalla.
The accused was ..charged, as the driver of a motor lorry, withcarrying goods in excess of the prescribed quantity in breach of section 62
of the Motor Car Ordinance, No. 20 of 1927.
J.R. Jayewardene, for accused, appellant.—The accused is thepossessor of a motor omnibus licence. He is the driver of the omnibus.Schedule IV of the Motor Ordinance, section 6 (3), makes the conduct-or and not the driver liable for carrying goods in excess of the licence.There is reason for this. An omnibus is permitted to carry goods up toa certain weight. These goods may be the goods of the passengers whoget in at the various halting places. The driver will not be able tocontrol the weight of goods a passenger may bring, nor will he be able toknow the weight of goods on the omnibus. The conductor is in touchwith the passengers and their luggage; therefore he is made responsiblefor overloading.
The Magistrate has held that the accused by carrying goods inside theomnibus and exceeding 537 lb. which could only be carried on the top of theroof, treated and used this vehicle as a lorry. It is submitted that oncea vehicle is licensed as an omnibus it is always an omnibus, till the licenceis changed. This point is covered by authority—see P. C. Amath v. DeSilva' and the judgment of the Chief Justice in 888 P. C. Galle, 5,047(S. C. M. of 6.12.33).
The accused, the driver of the omnibus, is therefore not liable to becharged with this offence. 1
A
Cur. adv. vult.
1 10 Times of Ceylon L. R. 84.
SOERTSZ AJ.—Doole v. Zubair.
243
June 25, 1935. Soertsz A.J.—
In this case, the Magistrate, acting under section 187 of the CriminalProcedure Code, charged the accused from the summons. The chargeas laid in the summons filed of record is in these terms: —“ Being thedriver of lorry No. X 6161, did carry goods up to the weight of 1 ton.13 cwt. 2 qr. and 27 lb. in excess in the said lorry, to wit, 3 tons 12 cwt.2 qr. and 1 lb. when allowed to carry 1 ton 10 cwt. 2 qr. and 14 lb., inbreach of section 62 (1) of Ordinance No. 20 of 1927—an offence punishableunder sections 82 and 84 of Ordinance No. 20 of 1927 ”. The accusedpleaded not guilty. The only defence ultimately pressed was that thevehicle in question was not a lorry but an omnibus, and that, therefore,the accused who was the driver of the vehicle was not liable to be prose-cuted. The liability was the conductor’s under rule 6 (3) of the FourthSchedule.
The first question that arises is whether the vehicle is a lorry or anomnibus. An omnibus is defined in the interpretation clause as “ a hiringcar having seating accommodation for more than seven passengers. ”This vehicle has admittedly been licensed as a motor omnibus, that is tosay, it has been passed as complying with the requirement of seatingaccommodation for more than seven passengers. As a matter of fact,it is not denied that it had such seating accommodation, and I find theMagistrate has recorded in the course of the argument before him thefact that this vehicle has adjustable seats provided lengthwise.
But the Magistrate holds this vehicle to be a “ lorry ” for the purposeof this prosecution, because, “The accused by carrying goods inside itand not on the roof, and because the load exceeded the 537 lb. whichcould only be carried on the top of the roof, treated and used this vehicleas a lorry ” (sic). I have no hesitation in holding that this is an entirelyerroneous view. I do not think an omnibus has this protean quality ofbeing able to change its essential character. An omnibus remains anomnibus even when it is misused, just as much as a bat remains a bat anddoes not become a club because I use it to belabour my neighbour, insteadof to strike a cricket ball. I use it as a club, but it is still a bat. LyallGrant J. in the case of P. C. Amath v. De Silva1 says, “ I can see no reasonto suppose that the Legislature intended that some of these regulationsshould apply only to vehicles licensed as omnibuses where the vehicleis actually plying for hire. … I think it is clear that for thedenomination of the vehicle one must look to the licence. This vehiclewas licensed for use as a motor omnibus and it must be held subject tothe regulations which govern motor omnibuses ”.
The vehicle in this case was licensed as a motor omnibus, and by thelicence issued in respect of it, it was empowered to carry 23 passengers,and goods on top of the roof, and 2 gallons petrol up to 537 lb. weightyor, alternatively, to carry 4,102 lb. and two passengers besides the driverand the conductor. I cannot, then, see how the Magistrate can hold thatthe accused, by carrying goods inside exceeding 537 lb. treated andused this vehicle as a lorry. The licence had specially empowered it asan omnibus—for it was licensed as an omnibus—to carry alternativelygoods to the weight of 4,102 lb. without any qualification as to where they
1 10 Times of Ceylon L. R. 84.
244
SOERTSZ A.J.—Doole v. Zubair.
should be carried, and two passengers besides the driver and conductor.
I therefore hold that this vehicle was an omnibus at the time of thealleged offence, and that when the charge was laid against the accused as“ being the driver of lorry No. X 6161,” the whole question in the casewas being begged. Section 62 (1) under which the accused was chargeddoes not, therefore, apply.
The learned Magistrate, however, goes on to say that even if section 62does not apply, “ apart from the question whether this is an omnibusor a lorry, it is a motor car as defined in section 2 (1) of Ordinance No. 20of 1927, which includes ‘ a motor cycle and every description of vehiclepropelled by mechanical power ’ ”. Section 31 of the said Ordinance statesthat “ A motor car shall not be used in contravention of any condition,or other provisions lawfully inserted in a motor car licence; in thisparticular instance there has been a contravention of a provision in thelicence inasmuch as a load of 1 ton 13 cwt. 2 qr. 27 lb. have been carriedwhereas the licence allows only 4,102 lb. Section 62 (1) states : “ It shallnot be lawful for a load exceeding the maximum load which a lorry islicensed to carry to be carried in the lorry ”. With regard to this, first ofall, the charge has not been laid under sections 62 (1) and 31, but undersections 62 (1) and 82 and 84 of the Ordinance. Secondly, section 62does not apply at all. That section applies only to lorries. That is thetechnical aspect of the matter; but apart from that aspect, as pointed outby Justice Lyall Grant in the case I have refered to, “ this vehicle waslicensed for use as a motor omnibus and it must be held to be subject tothe regulations which govern motor omnibuses ”. Those regulations areto be found in the Fourth Schedule to the Ordinance. Rule 6 says:
“ (1) No goods shall be carried on an omnibus unless permitted bythe licence.
No goods or baggage other than spare wheels or spare tyres shallbe carried on the roof of the omnibus, or in any place in the omnibus notauthorized by the licence.
If there are found in an omnibus goods exceeding the weight,which having regard to the number of passengers in the omnibus, theomnibus is licensed to carry, the conductor of the omnibus shall beguilty of an offence.” The defence in this case is laid under sub-section(3) of this regulation, which makes the “ conductor ” guilty of theoffence.
The Magistrate says, “ Section 6 (3) of the Fourth Schedule to thisOrdinance does not apply to this case; in the first place I hold that at thetime this motor car was put to use, it was used as a ‘ lorry ’ and not as anomnibus, in the second place the ‘ goods ’ mentioned refer to goods in thefirst of alternative privileges given in the licence because of the words‘ having regard to the number of passengers in the omnibus ’. Thissection contemplates a motor car carrying passengers and goods belong-ing to such passengers ”. The first point has been dealt with.With regard to the second, I fail to see how the plain meaning of the wordsallows such a restriction to be imposed. The words, “ having regard tothe number of passengers in the omnibus ” in relation to this omnibusmust mean that if there are two passengers besides the driver and con-ductor it may carry goods up to a weight of 4,102 lb. anywhere on it, and
245
Silva v. Ratnayake.
if there are more than two passengers up to the limit of 23 passengersbesides the driver and the conductor, it is restricted to 537 lb. inclusive of2 gallons of petrol to be carried on the top of the roof.
I cannot agree at all that the section means carrying passengers and thegoods belonging to such passengers only. The words, “ having regard tothe number of passengers ” have been introduced for the purpose ofdefining the limit in weight of goods that can be carried in alternative cases.In the case of an omnibus with only two passengers other than the driverand conductor the limit is 4,102 lb; anything in excess is an offence. In thecase of an omnibus with more than two passengers besides the driver andconductor the limit is 537 lb. The Magistrate also refers to sections 80 (1)and 80 (3) of the Ordinance and says that they state “ if a motor car isused which contravenes any provisions of this Ordinance or if anything isdone in connection with a motor car, in contravention of any provision ofthis Ordinance, the driver of the car at the time of the offence shall beguilty, unless the offence was not due to any act, omission, or neglect onhis part. Section 80 (3) states that unless otherwise expressly provided,the driver is liable. Hence it is for the defence to show that there is aprovision casting the liability on the conductor ”.
Assuming that this section is applicable although no reference is madeto it in the charge laid against the accused, in this case the contention ofthe defence when confronted with this section will clearly be that thedriver is not liable as it has been expressly provided by rule 6 (3) of theFourth Schedule that the conductor is liable.
Arguments based on the appropriateness of the existence of a conductoron an jmnibus carrying at most four people and goods up to the weightof 4,102 lb. are matters for the Legislature to consider. The learnedMagistrate observes that “ the word conductor means a person whoconducts another person to the latter’s destination; a conductor cannotbe said to be conducting an inanimate thing to a destination ”. If thisis a good definition, I cannot say that a conductor is out of place on avehicle which in addition to 4,102 lb. of inanimate things is carryinga driver, and may be two passengers.
The appeal is entitled to succeed. I allow it and set aside the convictionand acquit the accused.
Set aside.