In Re: K.S.M. Mohammad Abdul Kadar Marakayar

Panchapakesa Aiyar, J.—The petitioner in all these petitions is one Muhammad Abdul Kadar Marakayar. He has been convicted u/s 282,

Penal Code and sentenced to pay a fine of RS. 40/-, Rs. 75/-and Rs. 100/-, respectively, in these three cases, for having knowingly and

negligently conveyed or caused to be conveyed for hire persons so loaded on his three boats as to endanger the life of the persons travelling in the

boats. In Cri. R. C. No. 451, 36 passengers were carried as against 24 passengers allowed under the rules. In Cri R. C. No. 453 of 1949 also

there was even more gross overloading, the number of passengers conveyed being 30 instead of the 12 allowed. In Cri. R. C. No. 452, 52

passengers were carried instead of the 30 allowed. The learned counsel for the petitioner, Mr. Ahmed Meeran, has raised three main contentions.

The first is that the petitioner is not the owner of the boat concerned in Cri. R. C. No. 452, and that he has also denied the ownership in the

Courts below, and that the prosecution has failed to prove his ownership or liability for the overloading in that boat. That is so. The learned Public

Prosecutor also agrees. Therefore, the petitioner''s conviction and sentence in C. C. No. 1147 of 1948, covered by Cri. R. C. No. 452, must be

set aside, and or hereby set aside, and the fine, if paid, ordered to be refunded to him.

In the other two cases, the petitioner is admittedly, the owner of the boats which carried such terrific over loads and endangering the safety of

the passengers. The number of passengers is fixed for each boat under the rules taking everything into consideration including seaworthiness,

safety, etc., the safety of the passengers being the paramount consideration. Boats are likely to capsize, and drown the passengers travelling in

them, if they are overloaded like this. The contention of the learned counsel for the petitioner in these two cases is that the tindal is the man in direct

charge of the boats, and is the person made liable under the Ports Act, and that, under the ruling in Buchalal v. Rex, 1948 A. L. J. 354 : A. I. R.

1949 ALL. 11, owners of motor vehicles not proved to have known personally about the overloading of the motor vehicles are not liable, but only

the drivers, and that the presumption of knowledge by owners does not extend to Section 72(3)(b) of the Motor Vehicles Act, 1939. Mr. Ahmed

Meeran urged that the same principle will apply to boats. I cannot agree. The tindal is undoubtedly liable for overloading boats, but that does not

mean that no other body will be liable. There are cases, under our law, both civil and criminal, when several persons will be jointly liable for acts

and omissions, and it is no defence for one, when charged, to say that another person liable is not charged. He may, of course, show that the

others alone are liable. Here, therefore, the fact that the tindal a man of straw, has not been prosecuted for these offences, is irrelevant as the

petitioner a man of substance and the owner is also liable. The ruling relied on will not have any application to this case, which relates to

overloading a boat. u/s 282, Penal Code, and endangering the lives of passengers. That was a ruling under the Motor Vehicles Act, and under a

specific section thereunder. It was not a ruling relating to boats or u/s 282, Penal Code, where there is the significant phrase ""on negligently"" which

is not found in the section in the Motor Vehicles Act considered in the ruling. I am convinced that the owner who knowingly or negligently allows

overloading of his boat so as to endanger the life of the persons therein will be liable u/s 282, Penal Code.

Then the question is whether this petitioner, the owner, was guilty of either knowledge or negligence. There is no proof that he actually knew, as

a matter of fact, about this overloading on his two boats, but there is not the least doubt that he was guilty of negligence, and that this negligence

was directly responsible for the overloading of his boats, endangering the safety of the persons travelling therein. If he had exercised due care and

caution, especially as the boats were only plying from Danushkodi, when he was living in nearby Pamban, this over-loading would never have

happened. He was, doubtless, content not to enquire of his tindal or ask inconvenient questions but to take the proceeds of such overloading. That

will make him liable for negligence, as he did not take due care and attention. Many accidents and fatalities have occurred all over India by boats

being so overloaded, in the Godavari, in the Narmada, in the Brahmaputra ,and in several other places. This is a thing which ought to be stopped,

and, if the owner is not caught and punished for his negligence, it will never be stopped effectively.

It was urged that this petitioner was living at Pamban, two miles away, and not at Danushkodi, and so could not be aware of the over-loading of

these boats. I cannot agree. If he had gone on a pilgrimage to Mecca, or was so far away that he could not reasonably be expected to know what

was happening to his boats, he could have urged lack of negligence; but, when he was living in nearby Pamban, and daily getting his proceeds from

the boats, the plea sounds hollow and unconvincing. I, therefore, confirm the convictions of the petitioner in C. C. Nos. 1148 of 1948 and 1146 of

1948, but reduce the fines imposed on him to Rs. 10/- in each case, as this appears to be his first offence, and direct knowledge by him has not

been proved, but only negligence. The excess fines, if paid, will be refunded.