1957 Present : H. N. G. Fernando, J.

M. V. L. PERERA, Appellant, and M. D. G. PERERA
(Inspector of Police), Respondent

S. C. 1,240-M. M. C. Colombo, 21,642

Motor Traffic Act, No 14 of 1951-Failing to take such action as may be necessary to avoid an accident-Ingredients of offence-Sections 161 (1), 163 (2).

A charge under section 151 (l) of the Motor Traffic Act for failing to take such action as may be necessary to avoid an accident should not be thoughtlessly appended to each and every charge of negligent or reckless driving. In a prosecution under that section the burden is on the complainant to show what action was reasonably appropriate in the circumstances and to prove that the accused failed to take that action.

APPEAL from a judgment of the Municipal Magistrate's Court, Colombo.

D. D. Athulathmudali, with D. R. Wijegoonewardena, for the accused-appellant.

V. S. A. Pullenayegum, Crown Counsel, for the Attorney-General.

Cur. adv. vult.

July 1, 1957. H. N. G. FERNANDO, J.-

The appellant was convicted on two counts in respect of the driving of a motor vehicle. Firstly of reckless driving in contravention of section 153 (2) of the Motor Traffic Act, and secondly of " failing to take such action as may be necessary to avoid an accident " in contravention of section 151 (1).

In regard to the 1st count, the Magistrate has accepted the evidence that the car driven by the accused knocked down a man who was walking along the right side of the road and came to rest against a drain also on the right side. In the absence of any excuse for the car having been driven on its wrong side, I see no reason to interfere with the conviction on count (1).

I have noticed, however, that in prosecutions under the Act charges under section 151 (1) are " tacked on " without due regard to what is in my opinion the real purpose of section 151 (1). The section provides that " Notwithstanding anything contained in section 150, it shall be the duty of the driver of every motor vehicle on a highway to take such action as may be necessary to avoid any accident ". In Wijesinghe v. Rajapakse [*  (1947) 48 N. L. R. 382.] Dias, J. had occasion to refer to the corresponding section 86 (1) of the former Motor Car Ordinance which is in similar terms and to cite the following observation of Keuneman, J. in an unreported case with reference to section 86 (1). "I am inclined to think that this presupposes that an accident is imminent or at any rate foreseen or

anticipated. Under such circumstances, no doubt, it will be the duty of the driver of the motor car to take all action necessary to avoid the accident and if he fails to do so he may be made liable under these sections. But, in the present case, there is nothing to indicate that there were any steps either necessary or possible which the accused could take at the time when the accident could fairly be anticipated ". I would with respect agree with this observation. It is noteworthy that sub-section (1) of section 151 is prefaced by the words which I have underlined above. Section 150 contains what are described in the marginal note as rules of the road. The rules there laid down include inter alia the left side rule, restrictions as to overtaking, rules against obstruction, and the rule giving preference to right or off-side traffic at intersections. When therefore section 151 (1) casts a duty on a driver to take necessary action to avoid accident notwithstanding anything contained in section 150, there is in contemplation even action in contravention of section 150. For instance the action contemplated may in an appropriate situation involve the driving of a car on the right or off-side if that is reasonably necessary in order to avoid an accident. The fact that the action contemplated may even involve a breach of a rule of the road indicates that the Legislature had in mind " emergency situations " and casts on the driver a s