045-NLR-NLR-V-36-P.C.-DE-MEL-v.-BALASURIYA.pdf
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DALTON J.—P. C. De Mel v. Balasuriya.
19341Present: Dalton J.
P.C. DE MEL v. BALASURIYA.
485—P. C. Kurunegala, 35,652.
Motor bus—Contravention of driving rule by driver—Liability of owner—Noevidence of abetment—Motor Car Ordinance, No. 20 of 1927, ss. 43 (2)and 80 (3) (b).
Where the owner of a motor-bus was charged with allowing his driverto halt the bus on a high road for a longer period than was necessary topick up and set down passengers,—
Held, that the owner was not liable unless he abetted the commissionof the offence.
The provisions of section 80 (3) (b) do not apply to the contraventionof a .driving rule.
PPEAL from a conviction by the Police Magistrate of Kurunegala.Navaratnam, for accused, appellant.
Cur. adv. vult.
August 31,1934. Dalton J.—
The accused is the owner of bus No. F 1347. He has been convictedon a charge of allowing his driver to halt the bus on the high road in thebazaar at Mawatagama on February 2 last for a period longer thanwas necessary to pick up and set down passengers. There was no chargethat accused aided and abetted his driver to commit the offence, and theMagistrate points out that, although the accused was present at the timeof the alleged offence, there is no evidence that he aided or abetted hisdriver, but he finds th accused as owner guilty in view of the provisionsof section 80 (3) (b) of the Motor Car Ordinance, 1927. I have not hadthe benefit of hearing any argument in support of the conviction.
The particular offence charged here of standing in the highway longerthan was reasonably necessary is defined in section 2 (c) of Part I. ofSchedule IV. of the Ordinance. /Section 84 of the Ordinance providesthe penalty. y
Section 80 of the Ordinance provides for the liability of the owner aswell as the driver in the case of certain offences. The section is asfollows:—
80(1) If any motor car is used which does not comply with or
contravenes any provision of this Ordinance or of any regulation, or ofany order lawfully made under this Ordinance or any regulation; or
(2) If any motor car is used in such a state or condition or in such amanner as to contravene any such provision ; of
DALTON J.—P. C. De Mel v. Balasuriya.
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(3) If anything is done or omitted in connection with, a motor car incontravention of any such provision; then unless otherwise expresslyprovided by this Ordinance,—
The driver of the motor car at the time of the offence shall be
guilty of an offence unless the offence was not due to any act,omission, neglect, or default on his part; and.
The owner of the motor car shall also be guilty of an offence, if
present at the time .of the offence, or, if absent, unless theoffence was committed without his consent and was .not dueto any act or omission on his part, and he had taken allreasonable precautions to prevent the offence.
Chapter VH. of the Ordinance lays down-certain driving rules.Amongst other things, rules are here provided setting out how a motorcar shall be driven, how obstructions to other traffic are to be avoided,how and where cars shall be placed when halted, how when halted theyshall not be allowed to remain in such position so as to obstruct or belikely to obstruct other traffic, and regulations for parking generally.Section 43 (1) directs that the driver of a car shall observe the provisionsof this chapter, and sub-section (2) states that section 80 (3) (b) shall notapply"to a contravention of this chapter. It goes on to provide that theowner of a motor car, not being the driver thereof, shall only be convictedof a contravention of a provision of this chapter, not being speciallyapplicable to the owner, if he has abetted such contravention.
The Magistrate has convicted the appellant on the ground that he hascontravened clause 2 (c) of Schedule IV. of the Ordinance and not anyprovision of Chapter VII. Hence he states he cannot claim the benefitof the provisions of section 43 (2).-_
The Ordinance is not an easy one to construe, and there appears to besome overlapping in the different parts of it in regard to various provisionsdealing with cars, buses, and motor cabs. This may possibly be difficultto avoid in an Ordinance dealing with such varied matters as the con-struction and equipment of cars, registration, identification plates, licences,certificates of competence, driving rules, restriction of the use of highways,speed limits, and various matters incidental thereto. Schedule IV., forinstance, sets out amongst other things rules for the equipment ofomnibuses and also driving rules for the driver. Sections 2 and 3 of theschedule are definitely driving rules, and section 3 may well be includedin part of section 52 (1) of Chapter VII. Some contraventions of section 2of the schedule could also doubtless be brought under section 52 of theOrdinance, such as offences for halting or standing in a position notindicated by a notice exhibited by the licensing authority. Section 2 (c)of the schedule is aimed at preventing obstruction of other traffic by busestaking up and setting down passengers. The provisions of section 44 ofChapter VTL provides for the prevention of obstruction on a far widerscale, and I am not satisfied a charge for the specific offence set out insection 2 (c) could not also in certain circumstances be laid under one orother of the provisions of section 44 also.
Turning now to section 80 of the Ordinance, it is there provided by.sub-sections (1) and (2) that if any motor car is used which does notcomply with any provision of the Ordinance, or is used in such a state or
Herathhamy v. Muhammadu.
condition as to contravene any such provision, the owner shall be guilty,if present at the time the offence is committed, or in certain circumstancesif absent also. The provisions of the Ordinance referred to in sub-sections
and (2) are, it seems to me, provisions to which motor cars must complyor conform before they are used, in respect of such matters as equipment,construction, registration, licensing, or condition. One can understandthe owner being made responsible, for instance, for the proper equipmentand safe condition .of the car he allows his driver to use. Sub-section (3)refers to a contravention of those same provisions. It would appear toprovide for anything that may be omitted from sub-sections (1) and (2),for all three sub-sections must be read together. If anything is done oromitted in connection with a motor car in contravention of any suchprovision, then in the cases set out in sub-section (3) (c) the owner isalso guilty.
Against this construction it might possibly be urged that it renders theenactment of the provisions of section 43 (2) unnecessary in Chapter VII.,but, as I have pointed out, there is some overlapping in different parts of theOrdinance, hence the sub-section may have been inserted there as a matterof precaution. It seems to me to make it reasonably clear that theintention of the legislature was that the owner was not to be hold re-sponsible for the contravention by bis driver of what are purely drivingrules, unless he abetted such contravention.
The offence of which the owner has been convicted here is not thecontravention of any requirement of the Ordinance to which a motor carmust conform before use. The offence is the contravention of what iscalled in the Ordinance a driving rule, to which, in my opinion, theprovisions of section 80 do not apply. In the absence then of anyevidence to show he abetted the offence he must be acquitted.
The appeal must therefore be allowed, the conviction being quashed.
Appeal allowed.