1937   Present : Soertsz J.

NAIR v. ALEXANDER et al.

773-P. C. Matale, 17,582.
 

Omnibus-Maximum weight allowed in terms of regulation-Three tons- Actual weight at the time less-Contravention of rule-Motor Car Ordinance, No. 20 of 1927, regulation 4.

The driver and the owner of an omnibus were charged with a breach of regulation 4 of the regulations made under sections 6 and 58 of theMotor Car Ordinance, No. 2 of 1927, which provided as follows: " The tare of the motor car together with the weight of the maximum number of passengers and the maximum load, if any, which it is licensed to
carry, shall not in any case exceed the weight specified" which was three tons.

The omnibus in question was carrying a load which was actually less than three tons at the time.

Held, that the test to be applied was not the actual weight of the omnibus at any particular time but its maximum weight calculated in terms of the regulation.

Brantha v. Pereira (29 N. L. R. 38)' followed.

Where the licensing authority had made an endorsement on the licence to the following effect " load to be reduced on restricted roads ",-

Held, that the licensing authority had no power to permit what is inconsistent with the law.

APPEAL from a conviction by the Police Magistrate of Matale.

M. F. S. Pulle, C.C., for the complainant, appellant.

C. E. S. Pereira, for the accused, respondent.

Cur. adv. vult.

June 14,1937. SOERTSZ J.-

The first accused is the driver and the second accused is the owner of an omnibus bearing No. E 724. They were charged with a breach of regulation 4 of the regulations made under sections 6 and 58 of Ordinance No. 20 of 1927, and published in the Government Gazette of March 13,

1936. That regulation is in these terms-" The high ways outside Colombo specified in Schedule B hereto are hereby declared to be suitable for all motor cars other than lorries, trailers, and six-wheeled motor cars, subject to the condition of restrictions contained in the first column of the said schedule and hereby imposed in respect of the use of any particular highway thereof provided that-

(1) The tare of the motor car together with the weight of the maximum number of passengers and the maximum load, if any, which it is licensed to carry, shall not ,in any case exceed the weight specified in the corresponding entry in the second column of the said schedule ; and (2) the maximum axle load does not exceed three tons.

The highway in question in this case is that section of the Kandy, Matale, Dambulla road that lies beyond the 31st milepost and the Nalanda-oya bridge. The weight given for this section in the corresponding entry in column two is three tons. In terms of the concluding part of the regulation, that weight of three tons is the weight of the tare of the omnibus plus the weight of the maximum number of passengers and the maximum load, if any, which it is licensed to carry.

The facts of this case are that this omnibus was, on the occasion with which we are concerned; on the Dambulla side of the 31st milepost. In it there were 20 persons including the driver and the conductor. The tare of the omnibus is 1 ton 17 cwt. 1 qr. It is licensed to carry 19 passengers and the driver and conductor and goods up to 480 pounds and 2 gallons of petrol on the hood, or alternatively to carry up to 3,142 lb. and 6 passengers and the driver and the conductor. So that when this omnibus is being used for the conveyance of more than 6 passengers, it is capable of carrying 21 persons plus 480 lb. plus 2 gallons of petrol. Section 63 (1) of the Ordinance No. 20 of 1927 says that each person shall in the case of hiring cars, be deemed to weigh 120 lb. Therefore, the maximum weight is 21 X 120 + 480 lb. + the weight of 2 gallons of petrol, i.e., 2,520 + 480 = 3,000 + the weight of the petrol. Add the tare and the result is 3 tons 4 cwt. 4 lb. + 2 gallons of petrol. In the alternative case, the ma