050-NLR-NLR-V-39-NAIR-v.-ALEXANDER-et-al.pdf

M. F. S. Pulle, C.C., for the complainant, appellant.C. E. S. Pereira, for the accused, respondent.

Cur. adv. vult.
162
SOERTSZ J—Nair v. Alexander.
1936. That regulation is in these terms—“ The high ways outsideColombo specified jn Schedule B hereto are hereby declared to be •suitable for all motor cars other than lorries, trailers, and six-wheeledmotor cars, subject to the condition of restrictions contained in thefirst column of the said schedule and hereby imposed in respect of theuse of any particular highway thereof provided that—
(1) The tare of the motor car together with the weight of the maximumnumber of passengers and the maximum load, if any, which it is licensedto carry, shall not in any case exceed the weight specified in the correspond-ing entry in the second column of the said schedule ; and (2) the maximumaxle load does not exceed three tons.
The highway in question in this case is that section of the Kandy,Matale, Dambulla road that lies beyond the 31st milepost and theNalanda-oya bridge. The weight given for this section in the correspond-ing entry in column two is three tons. In terms of the concluding partof the regulation, that weight of three tons is the weight of the tare ofthe omnibus plus the weight of the maximum number of passengersand the maximum load, if any, which it is licensed to carry.
The facts of this case are that this omnibus was, on the occasion withwhich we are concerned^ on the Dambulla side ^of the 31st milepost.In it there were 20 persons including the driver and the conductor. Thetare of the omnibus is 1 ton 17 cwt. 1 qr. It is licensed to carry’ 19passengers and the driver and conductor and goods up to 480 poundsand 2 gallons of petrol on the hood, or alternatively to carry up to 3,142 lb.and 6 passengers and the driver and the conductor. So that when thisomnibus is being used for the conveyance of more than 6 passengers, itis capable of carrying 21 -persons plus 480 lb. plus 2 gallons of petrol.Section 63 (1) of the Ordinance No. 20 of 1927 says that each personshall in the case of lpanng cars, be deemed to weigh 120 lb. Therefore,the maximum weight is 21 X 120 + 480 lb. 4- the weight of 2 gallonsof petrol, i.e., 2,520 + 480 = 3,000 + the weight of the petrol. Addthe tare and the result is 3 tons 4 cwt. 4 lb. + 2 gallons of petrol. Inthe alternative case, the maximum weight of the omnibus is 8 X 1203,142 lb. + the weight of 2 gallons of petrol, i.e., 4,102 lb. +
gallons of petrol or 1 ton 15 cwt. 2 qr. 14 lb. Add the tare and theresult is 3 tons 13 cwt. 3 qr. 14 lb. plus the weight of the petrol. Inboth cases, therefore, the maximum weight is well over the prescribed
tons. But it is contended that inasmuch as this omnibus was carryingon this occasion less than 3 tons, there was no breach of the regulation.A similar contention was put forward in the case Brantha v. Pereira'but Dalton J. rejected it observing that if the actual weight was intended, itwould have been very easy to say so. I am in respectful agreement withthis view. This case-was relied upon by the prosecution in the Court belowand in regard to it, the Magistrate said, “ on the authority of the casereported in 29 N. L. R. 38, the accused will be guilty of an offence butthe accused pleaded that the licence issued was subject to special conditionsinscribed on the reverse side of the licence D 1 ‘ load to be reduced onrestricted roads’”, and he upheld the contention. In my opinion, this
> S C. L. Bee. 41 ; {1926) 29 X. L. B. 3$.
SOERTSZ J.—Nair v. Alexander.
163
is an impossible view as the law stands at present. It amounts to holdingthat it is possible to license persons to break the law. Not even alicensing authority has the power to do that. The law is clear that thetest is not the actual weight of the omnibus at any particular time,but its maximum weight calculated in the manner indicated. The wordsof the regulation are unequivocal, “ the tare of the motor car togetherwith the maximum number of passengers and the maximum load if any ”.The purpose of the words if any ” is not quite clear unless those wordshave been inserted to meet a possible case of a hiring car being licensedfor carrying passengers only. But it is quite clear that so far as passengersand the load come into question, it is the maximum number and themaximum load and not the actual number and the actual load that thelegislature contemplated. I was strongly addressed in regard to thehardship that this interpretation entails so far as owners, of omnibusesare concerned. Perhaps it is a hardship that they should have to maintainrelays of omnibuses to suit the exigencies of the route on which theyplied their omnibuses but that is a matter for the legislature. It isbeyond my control. I am concerned with, interpreting the law as it is.I would however add, if it will avail the accused at all, that the licensingauthority appears to have interpreted this regulation in the way inwhich they the accused ask it to be interpreted, for there is the endorse-ment on the licence “ load to be reduced on restricted roads ” implyingthereby that an omnibus of which the maximum attainable load is over 3tons can keep within the law by discarding goods or passengers to therequisite extent when the 3-ton limit of road is reached. But as I havealready held, however reasonable this view may be, it is inconsistent withthe law as it is. While I am on this point tjie words of Dalton J. in thecase I have referred to, occur to me “if effect can be given to the argu-ment advanced …., the provision would be unworkable without
a large body of traffic inspectors along the road continually checkingthe number of passengers entering and leaving the vehicles ”. I noticethat in regard tc this particular route, Kandy, Matale, Nalanda, Dam-bulla up to 31st milepost, the allowed weight is 5 tons “ with the exceptionof the Katugastota bridge on which the maximum weight, allowed is3 tons”. This, at first sight, may appear to support the case for theaccused, but as a matter of fact, it refutes that case by providing a verylimited exception. And in the case of that exception, the inconvenienceemphasised in the passage I have just cited from the judgment of Dalton J.will hardly apply, for an inspector stationed at that particular point willsuffice -for the enforcement of that exception.
I am, therefore, of opinion that the accused are 'guilty and that theorder of the Magistrate is wrong. I set aside the order and convict theaccused on the charges laid 'against them. In regard to sentence, inmy opinion, this is a case for nominal sentence. The licensing authorityhas misled the accused into the commission of this offence by makingthe endorsement he made on the licence. Moreover, the accused haveplied this omnibus on this route for a long time without this questionbeing raised. I would therefore, order each accused to pay a fine ofone rupee, in default one day’s simple imprisonment.
Set aside.