029-NLR-NLR-V-28-SERGEANT-HOOPER-v.-BASNAYAKE.pdf
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Present: Jayewardene A.J.
1920.
SERGEANT HOOPER t BASNAYAKE.OotombOt
Vehicles Ordinance, No. 4 of 1910—By-law made under section 22—
0toner.?’ liability for non-compliance tcitk by-law.
Where a motor car not fitted with two indejieudcnt brakesin good working order, as required by by-law 18 (10), was usedon a public thoroughfare,
Heldt that the owner of the car was guilty of an offence,irrespective of the liability of the driver.
^ PPEAL from an acquittal by tire Municipal Court of. Colombo.
Brito-Muttunayagam, C.C.t for Crown, appellant*.
1?. L. Pereira, for accused, respondent.
October 5, 1926. Jayewardene A.J.—
This is an appeal by the Attorney-General against an acquittal.The accused, who is the owner of motor omnibus No. C 6088; wascharged with having failed to have two independent brakes ingood working order in breach of section 18 (10) of the Motorby-laws, an offence punishable under section 34 of the same by-laws.
The learned Municipal Magistrate found that the brakes wereineffective, but held that the evidence fell far short of the kind ofproof that was necessary to establish a charge against the ownerof the vehicle under the by-law. He thought that the defects inquestion, which in his opinion were temporary and could havebeen remedied by mere adjustment, might have been sufficientto render the driver liable under the section, but that before theowner can be convicted there should be a permanent and mechauicaldefect in the brakes. He therefore acquitted the accused.
The appeal is based on the ground that the by-law in questionleaves no room for the distinction drawn by the learned Magistrate,and that the owner and the driver are liable in the same circum-stances. I think this contention is sound and is entitled to succeed.
Section 18 of the by-laws has been framed under section 22of the Vehicles Ordinance, No. 4 of 1916, which empowers theGovernor in Executive Council for the whole of Ceylon or any
*7
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1926.
Jaybwar-OBXK A.J.
iSeryeantHooper v.Jifumni/oke
part thereof without prejudice to his powers under section 18 ofthe Ordinance to make, &o., special by-laws regulating andcontrolling the, use of mechanically propelled vehicles, and forprotecting persons and property from clanger or damage from theuse of such vehicles, and generally for carrying out the purposesand objects of this Ordinance; and such by-laws may mter alio'* impose such restrictions upon the weight and construction andufs of mechanically propelled vehicles as may appear necessaryto protect public roads, bridges, culverts, and thoroughfares andstreets from undue damage and to ensure the safety of the public.”
And section 18 enacts that “ no motor car shall be used on anypublic thoroughfare unless the conditions hereinafter set forth arc-satisfied, and if any motor car is so used the owner and driver ofsuch motor car shall be guilty of an offence under these by-laws.*'
By-law 18 (10) runs as follows: —
The motor car shall have two independent brakes in goodworking order and of such efficiency that the applicationof either shall cause two of its wheels on the same-axle to be so held that the wheels shall be effectuallyprevented from revolving, or shall have the same effectin stopping the motor car as if such wheels were so held.Provided that in the case of a motor car having lessthan four wheels, this condition shall apply as if insteadof two wheels on the same axle, one wheel were thereinreferred to.”
In my opinion the effect of section 18 (10) is to make the owner*and the driver of a motor car which does not have two independentbrakes in good working order and of the efficiency required bthe section, guilty of an offence under section 18. It was notseriously contended that the owner would not be liable for failureto comply with the requirements of by-law 18 (10). There i;-nothing unreasonable in such a law, and our legislative enactment >contain numerous provisions which expressly or impliedly renderthe master criminally liable for the acts and omissions of hisservants. But it was contended that both the owner and tin-driver of a motor car or omnibus could not be convicted in respectof the same omission. It was stated that the driver of this omnibushas also been charged in respect of the same offence. His caseis not before me. If there is any substance iu the contention theobjection in question might be raised at the trial of the case againstthe driver. In the present case the objection cannot, in my opinion,be sustained.
I am unable to appreciate the distinction which the learnedMagistrate draws between defects for which the owner would beresponsible and the defects for which the driver would be respon-sible. By-law 18 (10) itself makes no such distinction, and to give-
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effect to any such qualification of the rule would be not to construethe section, but to introduce a distinction which the rule-makingauthority has not thought fit to introduce. The duty of the courtis to expound the law as it stands according to the real sense ofthe words used.
My attention was drawn to the case of Stewart v. Pachir S'aibo.lIn that case after the conviction of the driver of a motor car forrash and negligent driving the owner, who was not present at the-ime the offence was committed, was charged with the same offenceunder by-law 82 framed under section 22 (1) (h) of the VehiclesOrdinance. This Court there held, on an application for revision:vt the instance of the Attorney-General, that the by-law was ultraKites in so far as it sought to make the owner liable equally withthe driver for an offence committed by the driver in the absence■of the owner. That case dealt with an entirely different state offacts and does not bind me in the decision of this case.
1926.
Jaybwar-DENE A.J.
StoyearitHooper v.
Bafntaynhe
In the other case referred to Embuldcniya v. Palipane 2 the Courtwas construing a by-law passed under section 18 of the VehiclesOrdinance. The decision in that case has no bearing on the pointraised here, but I would point out that in the course of his judgmentin that case the learned Judge referred to the case of The ProvincialMotor Car Companyt Ltd. v. Dv^niny 3 in which it was held thatthe owner of a motor cab can t)t> guilty of aiding and abetting thedriver in using a motor cab in contravention of a by-law requiringcertain fittings for the lighting apparatus.
Section 18 of the by-laws makes the owner expressly liable forfailure xo observe the conditions set forth in sub-sections (1)-(14) ofsection 18. In my opinion, therefore, the learned Magistrate wasin error in drawing the distinction which he drew and in acquittingthe accused. The circumstances which he points'out are circum-stances which may be taken into 'consideration in passingsentence.
I find that the learned Magistrate acquitted the accused at the con-clusion of the case, for the prosecution. I would, therefore,set aside the order of acquittal and send the case back for theMagistrate to hear the defence.
1 (1925) 21 N. L. R. 25.
Set aside.
*{1926) 7 G. L. Rec. 203.
%1909) 2 K. B. 599.