Wijeysinghe (S.I., Police) V. Dhanapala

1938    Present : Moseley J.

WIJEYSINGHE (S.-I., POLICE) v. DHANAPALA

182-P. C. Kalutara, 33,408.

Motor Car Ordinance-Load of lorries-Excepted persons-Burden of proof- Ordinance No. 20 of 1927, s. 62 (3).

Where a person is charged with breach of section 62 (3) of the Motor Car Ordinance, viz.: " No person shall be carried in a lorry other than the owner or hirer of the lorry or of the goods carried therein or the servant or agent of the owner or the hirer",-

Held, that the burden of proving that the persons carried in the lorry fall within the excepted class of persons lies upon the accused.

Mudaliyar, Pitigal Korale North v. Kiribanda (12 N. L. R. 304) followed.

APPEAL from a conviction by the Police Magistrate of Kalutara.

Colvin R. de Silva, for accused, appellant.

Jansze, C. C for complainant, respondent.

Cur. adv. vult.

July 20, 1938. MOSELEY J.-

The appellant was charged that he being the driver of a certain lorry, carried goods and four passengers in contravention of the conditions or other provisions lawfully inserted in the licence, in breach of section 31 of Ordinance No. 20 of 1927 (The Motor Car Ordinance, 1927). The licence authorizes the carriage of goods and persons up to a total weight of 6,552 lb., such persons being the servants or agents of the owner or hirer of the lorry or of the goods carried therein.

It will be observed that the terms of the licence bear a strong resemblance to the provisions of section 62 (3) of the Motor Car Ordinance. The learned Magistrate in fact held that the charge actually came under that section, and he convicted the appellant of an offence against that section. That was one of the grounds of appeal urged before me, namely, that the learned Magistrate was wrong in recording a conviction under section 62 (3), seeing that the charge was laid under section 31. I expressed the view that the accused was in no way prejudiced thereby, and that ground of appeal was not pressed. As a matter of fact, the alteration was in favour of the accused, since the conditions of the licence make no exception in favour of the owners or hirers of the lorry, but only in favour of their respective agents or servants. So, but for the alteration, it would have been of no avail to the accused to prove that the alleged passengers held the status of hirers.

The appeal was then argued on the ground that the learned Magistrate was wrong in holding that the onus of proof that the persons carried in the lorry were owners or hirers of the lorry or of the goods carried therein, or the servants or agents of the owner or hirer was on the accused. I do not know what is meant by the expression "hirer of the goods", but I have set out the words as they appear in section 62 (3). That is, however, beside the point. The only point to be decided in this case is upon whom does the burden of proof lie. The learned Magistrate's finding is as

follows:-"Once the prosecution proves that besides goods there were men travelling in the lorry, it is for the accused to prove in what capacity such men travelled in the lorry ". I take it that he meant to say, "' it is for the accused to prove that each of them is a hirer or owner of the lorry or servant or agent of one of such persons ".

Counsel for the appellant relied upon the case of Nair v. Saundias [1 37 N. L. R. 439.], where a Full Bench held that, where it is sought under section 30 (3) (b) of the Motor Car Ordinance, 1927, to render the owner of a motor car liable for an offence committed in his absence by his driver, in which case his liability does not arise if the offence is committed without his consent, it is for the prosecution to prove that the offence was committed with his consent. In such a case the gravamen of the charge is that the owner consented and the reasons underlying the decision can be, and I say so with respect, readily appreciated.

It was further conte

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