063-NLR-NLR-V-36-GODAGAMA-v.-HINNIAPPU.pdf
305
MAARTENSZ J.—*<7oday- -«ti v Himuappu
1934Present:'-Maartensz J.
v.
GODAGAMA v. HINNIAPFU828f829—P. C. Matale, 11,771
Motor Car Ordinance—Carrying passengers in lorry—Servants of owner—Travelling on their own business—Ordinance No. 20 of 1927, s. 62 (3).
Sub-section (2) of section 62 of the Motor Car Ordinance which permitsthe owner of a lorry to carry his servants as passengers thereon does notapply where the servants travel on their own business and not in thecapacity of servants of the owner.
^ PPEAL from a conviction of the Police Magistrate, Matale.
R. C. Fcmseka, for accused, appellants.
M.F. S. Pulle, C.C., for complainant, respondent.
October 29, 1934. Maartensz J.—
The first accused in this case, the driver of lorry No. F 1328, wasconvicted of carrying nineteen passengers besides' the driver in the lorrywho were not the servants or agents of the owner or hirer of the lorry, inbreach of section 62 (3) and section 31 of Ordinance No. 20 of 1927, asamended by Ordinance No. 22 of 1929; the amending section of thatOrdinance is section 26. The second accused was convicted of .being theowner of the lorry and permitting or allowing the first accused to carrypassengers who were not his servants or agents in breach of section 62 (3),section 31, and section 83 (b) of Ordinance No. 20 of 1927, as amended byOrdinance No. 22 of 1929. The accused appeal from this conviction.
– It was submitted in appeal that the Magistrate’s rviling that a permit isnecessary to carry passengers is incorrect where the passengers are theagents or servants of the owner or hirer of the lorry. It was also submittedthat the conviction could not be sustained as the statement made by thefirst accused that the nineteen passengers were the employees of the owneris not rebutted.-
It is unnecessary for me in this case to decide whether the permitrequired by section 26 of Ordinance No. 22 of 1929^ refers to persons otherthan the servants or agents of the owner or hirer of the lorry as I am ofopinion that the conviction can be supported on another ground.
It appears from the proceedings that these nineteen passengers whowere in the lorry were travelling in it as pilgrims and, although they werethe employees of the owner, not travelling in the lorry in the capacity ofthe owner’s servants, but were in fact travelling on their own business.In my judgment sub-section (3) of section 62 which enacts that “ no personshall be carried in a lorry other than the owner or hirer of the lorry or thegoods therein or the servants or the agent of the owner or hirer ” does notapply to the case of servants travelling in a lorry dn their own, business and36/23
306
MAARTENSZ J.—Livera v. Boteju.
not in the capacity of servants of the owner. The business of the ownerin which they are employed and the purpose for which they are travellingin the lorry need not necessarily be business connected with the lorry. Itmay be for the purpose of any other business in which their employer isengaged.
I may also add that in this case beyond the statement of the first accusedthat the passengers were employees of Peter Dias & Co., the owners of thelorry, there is no evidence that the passengers were in fact employees ofthe Company.
It was submitted on behalf of the owner of lorry that it had not beenproved that the passengers were carried with his knowledge and consent.I am unable to deal with this submission as the point is not taken in thepetition of appeal.
The appeals are dismissed.
Affirmed.