1. 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 L738 of 1958.
2. 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 25-7-1938, KLD. 690 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 Bazar. 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 Under Section 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,
3. 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 Bhagavant Gopal In re A.I.R. 1943 Nag 22, the word owner' occurring in the various Sections of the Act would take in all persons in the sense in which if; 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 2(20) 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 Clause (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 me 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 be or may not be performing the function of driving. The word 'using' doesi 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 delictuin. 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.
4. The word 'use' as defined in the Standard lexicons is as follows:
Murray's New English Dictionary : 'The act of employing a thing for any (esp. a profitable) purposes; the fact, state, or condition of being so employed; utilisation or employment for or with some aim or purpose, application, or conversion to some (esp. good or useful) end.
To ply or carry on (an. occupation, profession (etc); to follow or exercise; to discharge the functions of (an office). To make use of (some immaterial thing) as a means of instrument; to employ for a certain end or purpose.
Funk and Wagnalls' New Standard Dictionary :
To employ for the accomplishment of a purpose; turn to account; make use of; Webster's International Dictionary of English Language:
Law. That enjoyment of property which consists in its employment, occupation, exercise, or practice,
Stroud's Judicial Dictionary :
A steam roller crossing one country in order to do work in another is, whilst passing over highways in its journey, being 'used' within Section 32 Highways and Locomotives (Amendment) Act, 1878.
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 counter-signed by a regional or state Transport 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 routed 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 Catacamund, not in the comers 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 on business. Secondly, die lorry driver had taken the Selas route because it is the short-cut route to Ootacamund. Thirdly, the Torry 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.
5. In these circumstances the contention of the learned advocate Mr. Chengalvarayan 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 f 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 more 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 had ' been reproduced above. The legislature has carefully confined Section 42(1) to 'using' only because otherwise it would lead to logical absurdities. It 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 Under Section 42(1) of the Act.
The law in the immortal language of Mr. Bunt. blew 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 Gifford v. Whittaker 1942 1 KB 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 facile 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.
6. 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 in to avail himself of the business which happens to be carried on there: See Halsbury's Laws of England, 3rd Edn. Vol. 18, page 192.
7. The learned Public Prosecutor brings to my notice the decision of the Supreme Court in State of Uttar Pradesh v. Bansraj : 1959CriLJ248 . 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 under v Section 42(1), would fall within Section 123 of the Act. This is not the case here.
8. 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; the1 accused are acquitted. The fine amounts, if collected, are directed to be refunded.