1935   Present: Soertsz A.J.

DOOLE v. ZUBAIR.

202-P. C. Kegalla, 26,351.

Motor omnibus-Carrying goods in excess of limit prescribed by licence- Liability of conductor and not the driver-Motor Car Ordinance, No. 20 of 1927, s. 62 1).

The conductor of an omnibus and not the driver is liable for carrying goods in excess of the prescribed limit under rule 6 (3) of the rules in Schedule IV of the Motor Car Ordinance.

APPEAL from a conviction by the Police Magistrate of Kegalla. The accused was charged, as the driver of a motor lorry, with carrying goods in excess of the prescribed quantity in breach of section 62 (1) of the Motor Car Ordinance, No. 20 of 1927.

J. R. Jayewardene, for accused, appellant.-The accused is the possessor of a motor omnibus licence. He is the driver of the omnibus. Schedule IV of the Motor Ordinance, section 6 (3), makes the conductor and not the driver liable for carrying goods in excess of the licence. There is reason for this. An omnibus is permitted to carry goods up to a certain weight. These goods may be the goods of the passengers who get in at the various halting places. The driver will not be able to control the weight of goods a passenger may bring, nor will he be able to know the weight of goods on the omnibus. The conductor is in touch with the passengers and their luggage; therefore he is made responsible for overloading.

The Magistrate has held that the accused by carrying goods inside the omnibus and exceeding 537 lb. which could only be carried on the top of the roof, treated and used this vehicle as a lorry. It is submitted that once a vehicle is licensed as an omnibus it is always an omnibus, till the licence is changed. This point is covered by authority-see P. C. Amath v. De Silva[110 Times of Ceylon L. R. 84.] and the judgment of the Chief Justice in 888 P. C. Galle, 5,047 (S. C. M. of 6.12.33).

The accused, the driver of the omnibus, is therefore not liable to be charged with this offence.

Cur. adv. vult.

June 25, 1935. SOERTSZ A.J.-

In this case, the Magistrate, acting under section 187 of the Criminal Procedure Code, charged the accused from the summons. The charge as laid in the summons filed of record is in these terms: -" Being the driver of lorry No. X 6161, did carry goods up to the weight of 1 ton .13 cwt. 2 qr. and 27 lb. in excess in the said lorry, to wit, 3 tons 12 cwt. 2 qr. and 1 lb. when allowed to carry 1 ton 10 cwt. 2 qr. and 14 lb., in breach of section 62 (1) of Ordinance No. 20 of 1927-an offence punishable under sections 82 and 84 of Ordinance No. 20 of 1927". The accused pleaded not guilty. The only defence ultimately pressed was that the vehicle in question was not a lorry but an omnibus, and that, therefore, the accused who was the driver of the vehicle was not liable to be prosecuted. The liability was the conductor's under rule 6 (3) of the Fourth Schedule.

The first question that arises is whether the vehicle is a lorry or an omnibus. An omnibus is defined in the interpretation clause as " a hiring car having seating accommodation for more than seven passengers." This vehicle has admittedly been licensed as a motor omnibus, that is to say, it has been passed as complying with the requirement of seating accommodation for more than seven passengers. As a matter of fact, it is not denied that it had such seating accommodation, and I find the Magistrate has recorded in the course of the argument before him the fact that this vehicle has adjustable seats provided lengthwise.

But the Magistrate holds this vehicle to be a " lorry " for the purpose of this prosecution, because, "The accused by carrying goods inside it and not on the roof, and because the load exceeded the 537 lb. which could only be carried on the top of the roof, treated and used this vehicle as a lorry " (sic). I have no hesitation in holding that this is an entirely erroneous view. I do not think an omnibus has this