003-NLR-NLR-V-39-MUNASINGHE-v.-ELIYATAMBY.pdf
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Munasinghe v. Eliyatamby.
1937Present : Soertsz j.
MUNASINGHE v. ELIYATAMBY.
687—P. C. Matale, 18,151.Omnibus—Carrying piassengers exceeding six and goods inside the bus—
Contravention of licence—Liability of driver—Motor Car Ordinance,
No, 20 of 1927, s. 80 (3). ■
Where an omnibus carries a number of passengers exceeding six, thecondition that the bus may carry goods to the extent of 336 lb. on theroof becomes operative ; and, if in such a case, goods are carried insidethe bus it would amount to a contravention of the licence, irrespectiveof their weight.
Where goods are carried in a part of the bus not authorized by thelicence, the driver, is liable under section 80. (3) of the Motor Car Ordi-nance unless the contravention was not due to any act, omission,neglect, or default on his part.
Doole v. Zubair (37 N. L. R. 242) distinguished.
A PPEAL from a conviction by the Police Magistrate of Matale.
C. E. S. Perera, for accused, appellant.
M. F. S. Pulle, C.C., for the complainant, respondent.
1 I. L. it. 8 Mad. SSO.
* 17 N. L. R. 110:
SOERTSZ J.—Munasinghe v. Eliyaiamby.9
June 11, 1937. SoHtrsz J.—
The accused in this case was charged in that he “ being the driverof motor bus No. X 4256 used the said bus in contravention of itslicence by carrying 14 passengers and 2 bags vegetables, 1 bag rice, 1 bagsundries, and 2 bundles of vegetables inside the said bus when it waslicensed for 17 passengers and 336 pounds of goods on the roof or in thealternative to carry 2,484 pounds of goods and 6 passengers in breachof section 31 of Ordinance No. 20 of 1927, and thereby committed anoffence punishable under section 84 of Ordinance No. 20 of 1927 ”.
He was convicted and sentenced to pay a fine of Rs. 15.
The appeal is on two questions of law. It is'contended (a) that therewas no offence because the goods found inside the bus were not weighedand that therefore there is no evidence that the weight of the passengersin excess of 6 passengers plus the weight of the goods inside the busexceeded the weight allowed, viz., 2,484 lb., (b) that if an offence wascommitted then the conductor and not the driver is liable.
The relevant facts are that on this occasion this omnibus was foundto be carrying 14 passengers, and the goods described in the charge, insidethe omnibus and that the accused was the driver of the omnibus. It isadmitted that the conditions endorsed on the licence issued in respect ofthis omnibus are that it may carry 17 passengers and goods up to a weightof 336 pounds on the roof or 2,484 pounds of goods and 6 passengers.In the alternative case there is no restriction as to where the goodsare to be carried. It seems clear that the parties interested in theomnibus are given the choice whether to use it on a particular occasionmainly for the conveyance of passengers or mainly for the carriage ofgoods.
Once' the six-passengers limit is exceeded, ipso facto, the conditionthat the bus, if it carries goods as well, should carry them on the roofand not in excess of 336 pounds in weight becomes operative. But,-in thisinstance, there were goods, no matter what their weight inside the husand thus there occurred a contravention of that condition. The con-tention put forward that inasmuch as 14 passengers and the driver andthe conductor weigh 16 x 120, i.e., 1,920 -pounds, and the weight of thegoods has not been ascertained/* the omnibus was within the alternativelimit of a load of 2,484 pounds is, in my opinion, utterly untenable.That alternative limit is irrelevant except when there are not more than6 passengers in the omnibus.
The next question is whether the driver could have been charged andconvicted. Mr. Perera for the appellant submitted that in terms ofregulation 6 (3) in the 4th schedule of the Motor Gar Ordinance theconductor and not the driver was liable. Regulation 6 (3) is in theseterms—“if there are found in an omnibus goods exceeding the weightwhich, having regard to the number of passengers in the omnibus theomnibus is licensed to carry the conductor of the omnibus shall be guiltyof an offence”.
But the prosecution in the present case is not based on an allegationthat the allowed weight was exceeded, but on the allegation that therewere goods inside the omnibus when under the conditions obtaining
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Kotalawala v. Perera.
at the time, goods should have been on the roof and not inside the omnibus.So that regulation 6 (3) does not apply. That being so the driver is liableunder section 80 (3) of the Ordinance unless the contravention was notdue to' any act, omission, neglect, or default on his part. The driverhas not sought to. exculpate himself on any of those grounds.
With regard to the case of Doole v. Zuhair1 the headnote does notstate the actual point decided in that ease, namely, that for ascertainingthe denomination of a vehicle whether it is a lorry or an omnibus onemust look to the licence and that an omnibus does not become a lorrybecause goods are carried inside and not on the roof as the conditionendorsed on the licence required. The driver was sought to be madeliable on-the ground that he was there in the position of a lorry driver.Moreover in that case the accused was charged with carrying goods inexcess of the prescribed quantity and not with carrying them in a prohibitedpart of the omnibus.
For these reasons, the appeal fails and is dismissed.
Affirmed.