PRESIDENT, DISTRICT BOARD Vs. ISMAIL SAHIB

JUDGEMENT

(1.) In these petitions the District Board of Anantapur is the petitioner. These arise out of a prosecution instituted by the District Board against the driver and the owner of a bus for infringing the notification issued by the President, District Board, on 11 June, 1926. The 2nd class Magistrate who tried the case acquitted the owner of the bus and convicted the driver under Secs.166 and 207 of the Local Boards Act.

(2.) The appellate Court set aside the conviction of the driver. The District Board has preferred these revision petitions against the order of the Appellate Magistrate and also against the order of the 2nd class Magistrate. The contention for the driver is that it is the owner of the bus that is liable if at all under Secs.166 and 207 and not the driver who is only a servant. Reliance is placed on Velayuda Mudali V/s. King-Emperor (1919) I.L.R. 43 Mad. 438 : 39 M.L.J. 85. That case has no application to the present. In order to see whether the driver of a vehicle comes within the provisions of the section, we have to look at the section itself. The first portion of Section 166 is in these terms: No person shall, on any public road in a district, ply any motor vehicle for hire or use any such vehicle for carrying passengers or goods at separate fares or rates on such road, except on a license obtained from the President of the District Board.

(3.) This covers the case of a person who plies any motor vehicle for hire or uses any vehicle for conveying passengers. It cannot be said that the driver of a car does not ply the car for hire when, as a matter of fact, he collects the fares from passengers. Though the owner may be liable for allowing the car to be taken along the road prohibited by the District Board, yet the responsibility of the driver who takes a car knowing that there is such a prohibition is not taken away by the mere fact, that the master also is liable. The contention that the servant is merely obeying the orders of his master is no ground for relieving him of his liability when the section clearly covers the case of a person plying for hire whether it is his own car or not. There is no warrant for saying that the driver who drives a vehicle knowing perfectly well that he should not go along a particular road does not contravene the provisions of Section 166, I am clearly of opinion that the case of the driver is covered by Section 166. I therefore set aside the Appellate Magistrate's order and direct him to restore the case to file and dispose of it according to law. In considering the sentence to be awarded to the driver he may, of course, take into consideration the fact that the master also is liable. But this is a matter entirely within the discretion of the Magistrate and it is unnecessary for me to say anything more about it.