Present : Dalton J.

EMBULDENIYA v. PALIPANE.

Kurunegala, 27,810.

    Vehicles Ordinance-Overloading a motor omnibus-Liability of owner- Validity of by-law-Ordinance No, 4 of 1916, s. 18.

A motor omnibus is a motor car within the meaning of by-law 2(a) made under the provisions of section 18 of the Vehicles Ordinance.

The by-law 2 (6), which makes the owner liable equally with the driver for the act of the latter in exceeding the maximum number of passengers which a motor omnibus is licensed to carry, is valid.

APPEAL from a conviction by the Police Magistrate of Kurunegala. The accused was charged, as the owner of a motor omnibus, with having overloaded the omnibus in breach of by-law 2 (b) made under the provisions of section 18 of the Vehicles Ordinance, 1916. It was admitted that the omnibus was licensed to carry passengers and was the property of the accused, and that the driver had carried more than the licensed number of passengers without the knowledge of the accused. The accused was convicted, and he appealed from the conviction on two grounds :-

(1) That a motor omnibus is not a motor car ;

(2) That the by-law is ultra vires in so far as it makes the owner liable for an offence committed without his knowledge and in his absence.

Croos Da Brera, for second accused, appellant.

Brito Muttunayagam, C.C., for Attorney-General.

March 12,1926. DALTON J.-

The appellant has been, charged, as the owner of a motor omnibus, with having overloaded the omnibus in breach of by-law 2 (6) dated May 19, 1921, made under the provisions of section 18 of the Vehicles Ordinance, 1916. He has been convicted, and appeals from that conviction.

Two grounds of appeal have been put forward :-

(1) A motor omnibus is not a motor car ;

(2) The by-law is ultra vires inasmuch as it makes an owner liable to be convicted of an offence committed without his knowledge and in his absence.

It is admitted that the omnibus was licensed to carry passengers and was the property of the appellant, and that on a journey . the driver picked up and carried more than the licensed number of passengers, but the appellant -was not present, and there is no evidence that he had any knowledge of the act of his driver. By-law 2 is as follows :-

" (a) The maximum number of passengers that may be carried in a motor car licensed to carry passengers and the maximum number of such passengers who may occupy the front seat with the driver shall be determined by the proper authority, whose decision shall be final. Such numbers shall be endorsed on the licence, and the maximum number of passengers the car is licensed to carry shall be clearly and legibly painted on a conspicuous part of the body of the motor car or on a plate or board affixed to a conspicuous part of the motor car.

" (b) If more than the authorized number is carried on the front seat, or more than the maximum number is carried in the car itself, the owner and the driver shall be guilty of an offence."

Section 18 of the Vehicles Ordinance (No. 4 of 1916) in its material parts is as follows :-

"18. (1) The Governor .... may .... from time to time make, and when made, revoke, amend, alter, or vary, such by-laws as may seem necessary or expedient for the purpose of carrying out the provisions of this Ordinance.

" (2) The by-laws made under the last preceding sub-section may provide, among other things-

" (a) For regulating the number of persons to be carried in vehicles . . . ."

Section 21 of the Ordinance provides a penalty for a breach of any by-law.

The first point to be decided is whether a " motor omnibus " comes within the term " motor car," the by-laws referring to motor cars only. It is admitted that previously to this it has not been questioned that they have been applied to a motor omnibus, although cases dealing with offences under these by-laws in respect of 'buses have been dealt with by this Court.

I am unable