1927 Present: Lyall Grant J.

MOORMAN v. SUGATHADASA.

426, 426a?P. C, Colombo, 29,076.

Motor omnibus-Negligence of driver-Presence of owner-Criminal liability of owner-Vehicles Ordinance, No. 4 of 1916, by-law 32.

The owner of a motor omnibus, who was present in the vehicle, is not criminally responsible for the negligence of the driver of the omnibus, unless the owner was in a position effectively to control the action of the driver.

APPEAL from a conviction by the Police Magistrate of Colombo. The accused, who are respectively the driver and the owner of a motor omnibus, were charged and convicted under section 82 of the Motor By-laws. The driver was charged with having driven his bus in a negligent manner and in a manner likely to cause hurt and with having caused hurt to a person. The owner was charged with allowing the driver to commit the offence charged against him and also with having allowed the bus to be driven in a manner otherwise than reasonable and proper.

On behalf of the owner the point was taken that the by-law, which makes the owner criminally liable for the negligence of the driver, is ultra vires of the powers conferred on the Governor in Executive Council by the Vehicles Ordinance of 1916.

J. S. Jayewardene, for appellants.

Fonseka, C.C., for Crown, respondent.

September 26, 1927. LYALL GRANT J.-

These two appeals are taken from convictions under section 32 of the Motor By-laws.

The accused are respectively the driver and the owner of a motor bus. The driver was charged with having driven his bus in a negligent manner and in a manner likely to cause hurt and with having caused hurt to a certain person and thereby having committed an offence. Secondly he was charged with having driven his motor bus negligently at the same time and place and with having caused damage to a bullock cart.

The second accused was charged with allowing the first accused to commit these offences, and also with having allowed the bus to be driven in a manner otherwise than reasonable and proper.

The undisputed facts in the case were that the bust came into collision, with a bullock cart, and that a certain Davith Perera, who was seated in the bus and had his elbow projecting through the window, was struck by a pole projecting from the cart, which passed through his arm.

The evidence as to how the accident came about is conflicting. The story for the prosecution is that some ten bullock carts were halted at a level crossing waiting for the gates to be opened. The bus came along at a furious pace and collided with the rearmost cart that was stationary.

The accused agree that the bust came up while the carts were standing on the road, but they say that the bust waited behind the rear cart until the gates were open-that it then pulled out to the light to pass the cart, and that while it was doing so, the cart made a half turn which projected the overhanging superstructure into the bus and that this was the cause of the accident.

The Police Magistrate has accepted the story for the prosecution and I am not prepared to say that he has no grounds for doing so.

The driver has been found guilty under section 32 of the Motor By-laws of negligent driving and fined Rs. 75. The maximum penalty for a first offence of breaking this rule is Rs. 50, and Crown Counsel intimated that he could not support the fine inflicted by the Police Magistrate. The fine is accordingly reduced to Rs. 50. The case appears to be one of gross negligence, and I think the accused ought to pay the maximum fine sanctioned by law.

On behalf of the owner the objection has been taken that no proper charge has been framed against him, but that the charges have been explained from the police report.

This procedure is permissible in certain cases by the proviso to section 187 of the Criminal Procedure Code, which allows the Police Magistrate to read the police report as a charge to the ac