( 145 )
Present: Lyall Grant J.
MOORMAN t>. SUGATHADASA.
426, 426a—P. C. Colombo, 29,076.
Motor omnibus—Negligenceofdriver—Presenceof owner—Criminal
liability of owner—Vehicles Ordinance, No. 4 of 1916, by-law 32'.
The owner of a motor omnibus, who was present in the vehicle,is not criminally responsible for the negligence of the driver ofthe omnibus, unless the owner was in a position effectively tocontrol the actibn of the driver.
PPEAL from a conviction by the Police Magistrate of Colombo.
**■ The accused, who are respectively the driver and the ownerof a motor omnibus, were charged and convicted under section 82of the Motor By-laws. The driver was charged with having drivenhis bus in a negligent manner and in a manner likely to causehurt and with having caused hurt to a person. The owner wascharged with allowing the driver to commit the offence chargedagainst him and also with having allowed the bus to be driven ina manner otherwise than reasonable and proper.
On behalf of the owner the point was taken that the by-law, whichmakes the owner criminally liable for the negligence of the driver,is ultra v,ires of the powers conferred on the Governor in ExecutiveCouncil by the Vehicles Ordinance of 1916.
J.S. Jayewardene, for appellants.
Fonseka, C.C., for Crown, respondent.
September 26, 1927. Lyall Grant J.—
These two appeals are taken from convictions under section 82of the Motor By-laws.
The accused are respectively the driver and the owner of a motor;bus. The driver was charged with having driven his bus in anegligent manner and in a manner likely to cause hurt and withhaving caused hurt to a certain person and thereby having commit-ted an offence. Secondly he was charged with having driven hismotor bus negligently at the same time and place and with havingcaused damage to a bullock cart.
The second accused was charged with allowing the first accusedto commit these offences, and also with having allowed the bus tobe driven in a manner otherwise than reasonable and proper.
( 146 )
The undisputed facts in the case were that the bust came intocollision with a bullock cart, and that a certain Davith Perera, whowas seated in the bus and had his elbow projecting through thewindow, was struck by a pole projecting from the cart, which passedthrough his arm.
The evidence as to how the accident came about is conflicting.The story for the prosecution is that some ten bullock carts werehalted at a level crossing waiting fof the gates to be opened. Thebus came along at a furious pace and collided with the rearmostcart that was stationary.
The accused agree that the bust came up while the carts werestanding on the road, but they say that the bust waited behind therear cart until the gates were open—that it then pulled out to theright to pass the cart, and that while it was doing so, the cart madea half turn which projected the overhanging superstructure intothe bus and that this was the cause of the accident.
The Police Magistrate has accepted, the story for the prosecutionand I am not prepared to say that he lias no grounds for doing so.*
The driver has been found guilty under section 32 of the MotorBy-laws of negligent driving and fined Rs. 75. The maximumpenalty for a first offence of breaking this rule is Rs. 50, and CrownCounsel intimated that lie (Sould nob support the fine inflicted bythe Police Magistrate. The fine is accordingly reduced to Rs. 50.The case appears to be one of gross negligence, and I think theaccused ought to pay the maximum fine sanctioned by law.
On behalf of the owner the objection has been taken that noproper charge has been framed against him, but that the chargeshave been explained from the police report.
This procedure is permissible in certain cases l>y the proviso tosection 187 of the Criminal Procedure Code, which allows tile PoliceMagistrate to read the police report as a charge to the accusedwhere the report discloses an offence punishable with not more thanthree months’ imprisonment or a fine of Rs, 50.
The question is whether the present offence is one which can bepunished with more than the amount specified in section 187.
The first offence is punishable with a fine of .Rs. 50, and the secondoffence with a fine of Rs. 100.
This precise point has already been the subject of a lading byGarvin J. in Sub-hixpector, Padukha, v. Perera.1
It was there held that the Magistrate was not entitled in suchcircumstances to read the report to the accused in lieu of framinga charge, the reasor given being that it is obvious that at the timeof the institution of the charge the Police Magistrate does not andcannot know whether the offence charged is a first or secondoffence.
1 2S A L. E. 479.
( 147 )'
I would also refer in this connection to Soysa v. Davith Singho 1and Jamal v. Samarasiughe2
The conviction of the owner cannot stand, and the only pointwhich remains is whether the case should be sent back for furtherproceedings. On this point the question arises whether the by-lawmaking the owner criminally responsible for the negligence of hisdriver is ultra vires of the powers conferred upon the Governor inExecutive Council by the Vehicles Ordinance of 1916.
It was held by Schneider J. in the case of Steuart v. Pakeer Saibo,?that in a case similar to the present one but where the owner wasnot present at the time of the accident, the reference to “ owner Min the by-law in question is ultra vires.
The most noteworthy feature in that case was that the proceedingswere brought up in revision by the Attorney-General whose sub-mission was that the reference was ultra vires. It was therepointed out that the by-law in question could only have been framedunder section 22 (1) (h)t which provides for by-laws as giving suchdirections as may appear necessary as conducive to the publicsafety and convenience and for the identification of drivers andthose in charge of such vehicles.
The ground of the judgment is stated as follows by Schneider J.: —
“ Now an owner, who was not in the vehicle at the time of theoffence by the driver, cannot be regarded as being concernedin any way with the driving and management. . Thereforethis by-law is ultra vires in so far as it seeks to make theowner liable equally with the driver for an offencecommitted by the driver in the absence of the owner."
It seems to me the same remark applies equally to a case wherethe owner, though physically present in a car, is not in a positioneffectively to control the action of the driver.
Although the Attorney-General on that occasion appeared byCrown Counsel to urge upon the Court that the particular referenceto “ owner ” in the by-law was ultra vires t in the present case CrownCounsel adduced a long list of authorities to show that the Courthas »»o power to inquire into the question of whether this by-lawis ultra vires.
Considered in the abstract the question is not free from difficulty,but in view of the fact that the Crown has already sought andobtained a decision of the Court on the point, I do not think thereis anything to be gained by my going into the question whetherthe Court has power to give such a decision. If the Crown wishesto raise this point it must be taken before a larger ,Court and thecase of Steuart v. Pakeer Saibo (supra) overruled or confirmed.
1 S C. L. R. 148.* 8 C. L. R. 168.
3 27 N. L. R. 2S.
( 1^8 )
I doubt, however, whether it is necessary to read the by-law insuch way that it. becomes repugnant to one's sense of justice.
The obvious intention of the by-law is to prevent rash andnegligent driving, and it is clear that wherever there is rash ornegligent driving, the driver is made guilty of an offence under theby-law.
It might seem that the owner is equally made liable, but it wouldappear from the action of the Attorney-General in the case abovereferred to that it was not the intention of Government to passsuch a by-law, and indeed, it would not be presumed lightly thatthe legislature intended to make a perfectly innocent person liablefor an offence, of the very occurrence, of which he might have noknowledge, and which it would be impossible for him to prevent.
Bather would one read the by-law in such a way as to make theowner guilty of an offence only where the negligence or recklessnesswas such as he could reasonably have been expected by the exerciseof his authority to prevent.
If any other meaning than this is to be attached to the by-law,I agr.ee with Schneider J. that the reference to the owner is ultravires, and that in no circumstances can the owner be held to beguilty of an offence in respect of any act of his driver contraveningthe by-law.
In the present case there is nothing to show that the accidentarose out of the fault of the owner, or that he could in any way haveprevented it.
The appeal of the second accused is allowed a ml his convictionquashed.
MOORMAN v. SUGATHADASA