In Re: T.V. Moidu and Another

Ramaswami, J.—These are two Revision Cases preferred against the convictions and sentences by the learned Additional First Class

Magistrate, Coonoor, in S.T.R. Nos. 1737 and 1738 of 1958.

The facts are short and the point of law raised by the learned advocate Sri T. Chengalvarayan, is an interesting one. The public transport vehicle,

lorry K.L.D 390, has got a permit to ply from Kundah to Ootacamund. But the route is via Korakundah and not Selas. On 25th July, 1958,

K.L.D. 390 was found being driven by the driver Moidu at that time, on a trip totally unconnected with its use under the permit granted to it at

Selas Bazaar. It is admitted that via Selas is the shortest route to Ootacamund from Kundah. The driver Moidu and the owner Ayyappan have

been charge-sheeted for an offence u/s 42(1) read with Section 123 of the Motor Vehicles Act and under Rule 226 of the Motor Vehicles Rules

read with Section 112 of the Motor Vehicles Act. Both of them were convicted and fined. Hence these Revision Cases.

I must now briefly set out the relevant provisions of law. Section 2 of the Motor Vehicles Act sets out the definitions. A ""goods vehicle"" is

defined in Section 2(8) as meaning any motor vehicle constructed or adopted for use for the carriage of goods, or any motor vehicle not so

constructed or adapted when used for the carriage of goods solely or in addition to passengers. The term ""owner"" is defined in Section 2(19) and

as pointed out by Niyogi, J., in Bhagwant Gopal, In re AIR 1943 Nag. 22, the word ""owner"" occurring in the various sections of the Act would

take in all persons in the sense in which it is ordinarily understood and that ownership as opposed to possession implies title with the incidental right

of transfer. In the context of a hire-purchase agreement, it will mean the person in possession of the vehicle under that agreement. The word

permit"" is defined in Section Section as meaning, any document issued by the Commissioner or a Provincial or Regional Transport Authority

authorising the use of a transport vehicle as a contract carriage, or stage carriage, or authorising the owner as a private carrier or public carrier to

use such vehicle. The terms ""private carrier"" and ""public carrier"" are defined in Clauses (22) and (23). The words ""plying for hire"" in this

connection, it may be pointed out, have the same significance in India as they have in England. The words ""to ply for hire"" as used in the Rules and

as they are generally understood, ordinarily mean to exhibit a vehicle in such a way as to invite those, who may desire to do so, to hire it or travel in

it on payment of usual fares and also to offer its use on payment to any member of the public thereby, soliciting custom. The Motor Vehicles Act in

connection with the travelling of a vehicle makes a sharp distinction between driving a vehicle, being in charge of the vehicle, and using the vehicle.

It need not be pointed out that driving a vehicle is nothing more than a physical or manual act of propelling it. To be in charge of the vehicle, means

something different, viz., the vehicle being in the custody of the person who is said to be in charge of that vehicle and that person may or may not

be performing the function of driving. The word ""using"" does not mean the same thing as driving or being in charge of the motor vehicle. The word

use "" connotes that the travelling or stationary vehicle at the time when it becomes the subject-matter of a delictum was at the place where it is

found in the course of its user in accordance with the permit granted to it and which has been defined above.

The word ""use"" as defined in the standard lexicons is as follows:

Section 42(1) of the Motor Vehicles Act states:

No owner of a transport vehicle shall use or permit the use of the vehicle in any public place, save in accordance with the conditions of a permit

granted or countersigned by a Regional or State Trasnport Authority...authorising the use of the vehicle in that place in the manner in which the

vehicle is being used....

Section 123 lays down:

Whoever drives a motor vehicle or causes or allows a motor vehicle to be used in contravention of the provisions of Section 22 or without the

permit required by Sub-section (1) of Section 42 or in contravention of any condition of such permit relating to the route on which or the area in

which or the purpose for which the vehicle may be used, shall be punishable...

Bearing the above definitions in mind, let us examine the facts of this case. First of all, the lorry in question was found at Selas on its way from

Kundah to Ootacamund, not in the course of the business covered by the permit. It was coming from Kundah to Ootacamund in order to be sent

to Coimbatore. Therefore, the lorry was not found at Selas even in any manner remotely connected with its plying oh business. Secondly, the lorry-

driver had taken the Selas route because it is the short-cut route to Ootacamund. Thirdly, the lorry was as a matter of fact found empty, showing

that it was not going about on business and for which the permit has been issued. It is not the case for the prosecution that the lorry was detected in

the course of being used as a transport vehicle.

In these circumstances the contention of the learned advocate, Mr. Chengalvaroyan, is that the provisions of Sections 42 and 123 of the Motor

Vehicles Act have not been offended appears to me sound. Section 42 requires the use or permitting the use of the transport vehicle contrary to

the conditions of the permit. I have already pointed out how the term ""use"" is different from ""driving"" and ""be in charge of"". A study of the Sections

of the Motor Vehicles Act shows how the Legislature was fully aware of these distinctions. That is why in Section 42(1) there is no reference to

driving"" but only to ""using"" and ""permitting the use"" of the vehicle. If the Legislature had really meant, even the mere physical act of driving

irrespective of using it, contrary to the conditions of the permit, it would have made it clear as it has done in Section 123 which has been

reproduced above. The Legislature has carefully confined Section 42(1) to ""using"" only, because otherwise it would lead to illogical absurdities. If a

person even moves a lorry outside his garage to a nearby pond where it has to be periodically washed, he could be run in u/s 42(1) of the Act. The

law in the immortal language of Mr. Bumble may be an ass, but it cannot be so asinine as all that. The expression ""to use"" has unfortunately

escaped judicial consideration in this country. The question of the meaning of this expression was, however, considered in connection with the

Motor Vehicles (Construction and Use) Regulations, 1937, in Gillford v. Whittaker L.R. (1942) 1 K.B. 501, and while the question was directed

at discovering who was the ""person using"" the vehicle some points of guidance emerge. Counsel drew attention to the fact that other regulations use

the expressions ""to drive"" and ""to be in charge of"" rather than ""to use"" : this is equally true of other road traffic offences. It is not, for example, an

offence ""to use"" a motor vehicle on a road without holding a driving licence, only to drive it in such circumstances. The implication then is that

using"" is not the same as driving or being in charge of a motor vehicle.

Analogies can be drawn from the English Gaming and Wagering Acts, where the offence of keeping or using a gaming house can only be

committed by one who is the owner, occupier, or a person having the use of it, which means one who has the use, as a licensee to carry on the

business, and does not include a person who uses the place in the sense of merely going into avail himself of the business which happens to be

carried on there : See Halsbury''s Laws of England (Third Edition) Volume 18, page 192.

The learned Public Prosecutor brings to my notice the decision of the Supreme Court in State of Uttar Pradesh v. Bansraj (1959) S.C.J. 101 :

(1959) M.L.J. 20. But the point considered there is not the point which falls for determination here, viz., the distinction between ""driving"" and

using"". The point which arose for determination there was, whether the driver of a motor vehicle who is not its owner and who drives in

contravention of the conditions of the permit u/s 42(1) would fall within Section 123 of the Act. This is not the case here.

The net result of this analysis is that Section 42(1) has to be read as follows:

No owner of a transport vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place...

On that conclusion it follows that the convictions cannot stand. They are hereby set aside and the accused are acquitted. The fine amounts, if

collected, are directed to be refunded.