1. The petitioners are the owner and the driver of a motor bus which was found carrying goods contrary to the conditions of its permit and they were convicted and fined under Section 42(1) read with Section 123(1) of the Motor Vehicles Act. The convictions and sentences were upheld on appeal. The correctness of the conviction of the driver has been attacked on the ground that it is no part of a driver's duty when there is a conductor present to supervise the loading of the vehicle. Objection has also been taken to the admission of certain evidence in proof of the carriage of the goods, Mr. Jayarama Aiyar contending that the only evidence let in on this point was hearsay and, if this be excluded, there is no proof that goods were in fact being carried.
2. Dealing with the first point, Section 123 (1) of the Motor Vehicles Act imposes liability on any person driving a motor vehicle otherwise than in accordance with the conditions of its permit, but it is contended that the responsibility of the driver (or the loading of the vehicle in excess of its carrying capacity or allowing goods to be carried in excess or contrary to the conditions of the permit is excluded by the rules framed under Chapter IV. This chapter deals with the Issue of permits, the conditions applicable to those permits and the issue of rules regelating the working of transport vehicles. Rule 217 of the Motor Vehicles Rules imposes on the driver and the conductor the duty of observing certain rules, of which the first is in these words,
The driver and the conductor of a public service vehicle while on duty shall, as far as may be reasonably possible having regard to his duties, be responsible for the due observance of the provisions of the Act and of these rules.
The next rule lays down the duties of the conductor of a public service vehicle and these include seeing that no person is carried in excess of the seating capacity of the vehicle and that where goods are carried on the vehicle in addition to passengers, precautions are taken to ensure that passengers are not endangered or inconvenienced by the presence of the goods. It is also the duty of the conductor to see that nothing is placed in the vehicle in such a manner as to obstruct the entry or exit of passengers and upon him is placed also the duty of taking all reasonable precautions to prevent luggage being miscarried or lost on the way. The duties of the driver are laid down in Rule 216 and the only clause in this rule relating in any way to the carriage of passengers or goods is the first, which is in these words,
The driver of a public service vehicle while on duty shall not cause or allow any person, animal or thing to be placed or to be in the space reserved for the driver's seat in accordance with Rule 365 or otherwise in such a way as to impede him in having a clear vision of the road or proper control of the vehicle.
In specific words there is no rule placing upon the driver or the conductor the duty of seeing that goods are not carried in a vehicle contrary to the conditions of its permit, but it is clear from what has been said about Rule 218 that it is the duty of the conductor to exercise supervision over the loading of the vehicle with passengers, luggage and goods. Rule 217 (1) limits the responsibility of the driver and the conductor for the general observance of the rules to what is reasonably possible having regard to their duties and no elaborate argument is needed in support of the contention that when there is a conductor present, the driver cannot exercise supervision over the entry and exit of passengers or the loading of the vehicle with luggage or goods. Under Rule 216 (1) the driver's responsibility regarding the passengers and goods in the vehicle is limited to seeing that the driver's seat is not occupied or his vision interfered with contrary to the rules.
3. The learned Public Prosecutor has however contended that in spite of these rules, Section 123 of the Act is wide enough to impose liability on the driver for the carrying of goods contrary to the conditions of its permit. If there were no rules framed under the Act there would be considerable force in this argument, but where rules have been framed under the rule-making power, by which the responsibilities of the driver and the conductor have been separately laid down, it follows that Sections 42 (1) and 123 of the Act are controlled by these rules. I accordingly find that the driver cannot be held liable for the contravention of a rule from the due observance of which he has been statutorily exempted and responsibility placed solely on the conductor.
4. Regarding the owner, Mr. K. S. Jayarama Aiyar does not challenge the propriety of the conviction under Section 42 (1) read with Section 123 of the Act, provided there is evidence showing that goods were in fact being carried contrary to the conditions of the permit. The evidence on this point is that of the Head Constable who detected the case. His evidence has been briefly referred to by the trying Magistrate in these words,
He checked M. D. U. 449...and found 9 baskets of grapes and three bundles of betels on the top of the bus. He inquired all the passengers in the bus and none of them admitted ownership of the goods. The conductor had issued a ticket for the 12 articles and kept it with him.
Mr. Jayarama Aiyar contends that this is hearsay evidence. The exact form in which the evidence was given cannot be ascertained because the case was dealt with summarily. If the Head Constable attempted to relate exactly what words the passengers used when they were questioned about the ownership of these twelve baskets, then the evidence, strictly speaking, would be hearsay and inadmissible, but if the Head Constable stated that he endeavoured to ascertain the owners of these packages and that no one claimed them, that answer is admissible and is sufficient upon which the learned Magistrate could conclude that the packages were goods and not personal luggage. Moreover, there was a ticket, which had been issued for them which was in the possession of the conductor instead of being in the possession of any passenger to whom the goods belonged. There was therefore sufficient admissible evidence on which the learned Magistrate could conclude that the articles were goods and not personal luggage. So far as the owner is concerned no fault can be found with the propriety of the conviction.
5. In the result the conviction of the second petitioner is set aside and the fine, if paid, is ordered to be refunded. The suspension of the driving license is also directed to be set aside. In respect of the first petitioner, the petition is dismissed.