102-NLR-NLR-V-59-SRI-LANKA-OMNIBUS-CO.-LTD.-Appellant-and-PERERA-P.-S.-2466-Respondent.pdf
■ 452' "Sri Lanka Omnibus Co., Ltd. v. Perera
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Present:Sinnefamby, J.
SRI LA2STKA OMNIBUS CO., LTD., Appeliant, and PERERA(P. S. 2166), Respondent
.S'. C. 136—31. 31. G. Colombo, S9.360
Motor TraJJic Act, No. 14 of -1051—Vehicle emitting excessive smoke—Liability ofowner or driver—Sections 3, 19, 192, 21G (2) (b), 239—Motor Traffic (Cons-truction of Vehicles) Regulations, 1951, Regulation 12—Quantum of evidence.
Failure to comply with a Regulation which does not expressly prohibituser, but only relates to construction and equipment, of a motor voliiclo doesnot amount to an offence under the Motor Traffic Act. A contravention,therefore, of Regulation 12 of tho Motor Traffic (Construction of Vehicles)Regulations by “ failing to So construct and maintain a motor vehicle in suchcondition as to prevent tho emission of smoko in such quantity as to bo anuisanco ” is not punishable under section 210 (2) (£>) of tho Motor TrafficAct..
Assuming that a failure to prevent emission of smoko in consequence of faultyconstruction or lack of proper maintenance of a vehicle is an offence, there'must bo specific evidence that tho vehicle in question was examined by a' competent person at tho time of tho offence or thereafter.
'/■"jkPPEAR from a judgment of the Municipal Magistrate’s Court,Colombo.
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Jl.'A. Kannanrjara, for tho accused-appellant.
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E~. de Silva, Crown Oniiinsal.■* for the comnlainant-respondent'. r
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Cur.', ddv. vulL ‘
SINXETAMBY, J.—Sri Lanka Omnibus Co., Ltd. v. Perera
453
November 26, 1956. Slnt>'etamby, J.—'-
The appellant Company was charged in this case with failing to soconstruct and maintain motor bus bearing No. I.C. 1217 in such conditionas to prevent the emission of smoke from the said vehicle in such quantityas to be a nuisance to P. S. 2466 Perera. It was sought to make theCompany liable under section 216 (2) (b) of the Motor Traffic Act. Theappellant Company is the registered owner of the vehicle and the chargealleges that it acted in contravention of Regulation 12 of the MotorTraffic (Construction of Vehicles) Regulations of 1951. The learnedmagistrate found the appellant guilty. This appeal is against thatconviction.
The regulations in question, it will be observed, were made undersections 19 and 239 of the Motor Traffic Act. Section 239 is (lie sectionwhich empowers the minister to make regulations under the Act andsection 19 provides that regulations may be made in regard to the con-struction and equipment of motor veliicles. Section 3 provides that novehicle should be registered unless it complies with the provisions of theregulations made in regard to construction and equipment. It is thusmanifest that the. primary object of the regulations in question wasto lay down conditions in regard to construction and equipment whichhad to be complied with before a vehicle was first registered. Section 192provides for the making of regulations in regard to the use of motorvehicles and the minister has made some regulations under the provisionsof this section which had been published in the same Gazet te of 27/2/1952.
It will thus be seen that one set of regulations dealt with cc construction ”while another set dealt with use ”. Section 12 of the (Constructionof Vehicles) Regulations under which the charge was preferred is to thefollowing effect :
" Every vehicle must be so constructed and maintained in suchcondition as to prevent the emission of smoke, grease, oil, ashes, water, •steam or visible vapour from the motor vehicle in such quantity as tobe a nuisance or to cause damage to any highway or annoyance ordamage to any person .”.
There is no regulation under the (Use of Vehicles) Regulations which .prohibits the user of a motor vehicle which is not constructed or main- •tained in the manner provided for by Regulation 12 quoted above..'; :It was contended in appeal that there was no prohibition against user’*';provided for either in the Act or by regulations of a vehicle which didnot comply with the requirements of the (Construction of Vehicles)Regulations. Reliance was placed upon the judgment in the case of” ‘Thomas Singho v. <S'. I. Police, Gampaha 1. Pullo, J. there held that in -the absence of a prohibition against the user of a motor vehicle whichdoes not conform to the (Construction of Vehicles) Regulations it couldnot be said that the use of a vehicle’which did not so conform was incontravention of-the regulations.^within the meaning of section 216 (2)of the Motor Traffic Act. The learned judge drew attention to the absencein the Motor Traffic Act of a section corresponding to section 5 of the
{1954) 55 N. L. R. 395.
454SINNETAMBY, J.—Sri Lanka Omnibus Co., Ltd. v.Perefd
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Moto.r. Car-Ordinance of 1938 which expressly prohibited the user .of amotor .yehicle pyhich did not! comply with regulations made under theOrdinance>There is also similar provision in the Motor Traffic Act/in*England. fBut in the Motor Traffic Act of 1951 this provision hasbeen omitted. Failure, therefore, to comply with. a regulation whichdid .not. expressly prohibit user but only related to construction andequipment did not, the learned judge held, amount- to an offence. Withthis view I respectfully agree.■
Though Counsel did not refer to it, my attention was drawn to a casein which Fernando, J. had made some observations by way of obiter onthe reasoning of Pulle, J. in the above case. This is the case of Fernandov. Amerasekera J. In that case the charge was laid under regulation 6of the (Construction of Vehicles) Regulations which required a vehicleto be equipped with at least one efficient braking system with twomeans of operation. The vehicle in question was in fact equipped witha braking system that conformed to the requirements of the regulationin question but it was not at optimum efficiency. The learned judgeheld that there was no breach of Regulation 6 of the (Construction ofVehicles) Regulations but that there was a breach of Regulation 4 of theMotor Traffic (Use of Vehicles) Regulations which required the brakingsystem to be maintained in good and efficient working order while thevehicle is being used on the highway. The learned judge then referredto the case of Thomas Singho v. S. J. Police, Gannpaha and stated thathe did not agree that the legislature did not intend that a failure to equipa motor vehicle with an efficient braking system in terms of Regulation 6of the (Construction of Vehicles) Regulations should be punishable asan offence. He referred to sub-section (2) of section 216 and statedthat although it did not cover the use of a veliicle the sub-sectionpenalised the owner and the driver " if anything is omitted to be done
in connection with a motor vehicle in contravention ofany
regulation ”. He added that the terms of this provision “ are wideenough to include the case of a vehicle in relation to which an efficientbraking system or any other equipment is required by any regulation tobe fitted to motor vehicles ”. With this view I regret I am unable toagree. Sub-section (2) of section 216 obviously contemplates the userof a motor vehicle ; for, unless the vehicle is being used it will not bepossible to ascertain the driver who is made equally liable as the ownerfor anything which is done or omitted to be done. In the case of anOmnibus Company no one can say who the driver of an omnibus isunless the vehicle at the time was being used on the highway.
– A provision in section SO of the Motor Car Ordinance Ho. 20 of 1927similar to the provisions of section 216 was construed by the SupremeCourt in de Mel v. Balasuriya 3. Section SO of this Ordinance providedas follows:.‘‘
SO (1) “If any motor car is used which does not comply, with orcontravenes any provision of this. Ordinance or of any .regulation, or of any order lawfully made under this Ordinanceor any regulation; or<- -‘
1 {1956) 57 N.' L; B. 503.'-* {1954) 55 N. L. J?. 395.
-* (193J) 3G N. L. K. 21S.
SIXMETAMBY, J.—Sri Lanka Omnibus.Co., Ltd. v. Pcrera455.
I £ any motor car is used in such a state or condition or in^such
a manner as to contravene any such, provision ; or ^ ,-
If any t hing is done or omitted in connection with a.motor, car
in contravention of any such provision ; then unless other-vise expressly provided by this Ordinance,:—d; ? ■ v
(а)The driver of the motor car at the time of the offence
shall be guilty of an offence unless the offence wasnot due to any act, omission, neglect, or default on hispart; and_'1
(б)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 the offence vvas committed without his
consent and was not duo to any act or omission oji hispart, and he had taken all reasonable precautions toprevent the offence.•
Dalton, J. made the following observations in regard to section SO (3)which is very similar to section 216 (2) :
“ Turning now to section SO of the Ordinance, it is provided bvrsub-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 astate or condition as to contravene any such provision, the ownershall be guilty, if present at the time the offence is committed, or incertain circumstances if absent also. The provisions of the Ordinancereferred to in sub sections (1) and (2) are, it seems to me, provisionsto wliicli motor cars must comply or conform before they are used,in respect of such matters as equipment, construction, registration,licensing or condition. One can understand the owner being maderesponsible, for instance, for the proper equipment and safe conditionof the car he allows his driver to use. Sub-section (3) refers to ft .contravention of those same provisions. It would appear to provide. for anything that may be omitted from sub-sections (1) and (2), forall three sub-sections must be read together. If anything is doneor omitted in connection with a motor car in contravention of any' such provision, then in the cases set out in sub-section (3) (c) the owneris also guilty.”• . –
I.fake these views expressed by the learned judge to mean that sectionSO, sub-section (3) is intended to cover contrav entions which are nbt -'caught up by sub-sectiojis (I) and (2) and applj- only in circumstanceswhen sub-sections (1) and (2) would apply: that is, when the vehicleis being used and the user is prohibited by any provision of, or by anyregulation made under, the Ordinance. I agree respectfully with theopinion expressed by the learned judge.- In this view of the matterthe charge against the defendant Company must fail… . ’
There was yet another objection to the conviction urged by learned .Counsel which in my view should succeed. . 'The .vehicle itself was notexamined by any competent person either .at the tiihe of-the alleged
456 .' * SINWETAMBY, J.—.Sri Lanka Omnibus Co.,'Ltd. v. Perera ‘ fyf/t’1-
offen.ce or at any time thereafter. The only evidence is that it ^yasemitting'smoke at the relevant time and there is nothing on recor^. toshow that this particular vehicle had not been constructed or maintainedin. accordance with the provisions of Regulation 12 of the (Constructionof Vehicles) Regulations. To establish this part of the case the prosecu-tion called an expert emplo3red by*the Gal Oya Development Boardwho has been described as a Mechanical Engineer and who holds a degree,in Engineering in addition to certain other qualifications. He gavesome general evidence in regard to vehicles of the Gal Oya DevelopmentBoard using Diesel engines and he made a general statement that thereasons for a Diesel engine emitting smoke are bad compression, faultyfilters, faulty fuel injection, excessive fuel injection and wrong timing.These, he said, are the main causes which make a vehicle to emit smokeand that it is chiefly .due to faulty-maintenance. • He added that 99%of smoking is due to that cause. In my view general evidence of thisnature is insufficient to bring home to an accused person liability inrespect of a criminal charge. There must be specific evidence that thevehicle is question was examined and that the emission of smoke wasdue either to faulty construction or lack of proper maintenance. Eorthese reasons I would set aside the conviction and acquit the accused-appellant.
Appeal allowed.