In Re: Rupchand Fomra and Others

P. Kunhamed Kutti, J.—All these Revision Cases are by one or the other member of the Fomra Family or firm and substantially relate to the

same question. These petitions can, therefore, be disposed of by a common order.

The several petitioners purchased motor cars in their individual names and hired them to the Burmah Shell Oil Storage and Distributing

Company for stated periods stipulating a fixed monthly rent. The cars were to be used in public places; but neither permits nor fitness certificates

had been obtained for any of them. Each of the petitioners was, therefore, charged firstly u/s 38(1) and secondly u/s 42(1) both read with Section

112, Motor Vehicles Act, 1939.

u/s 38(1) no transport vehicle could be deemed to be validly registered unless it carries a certificate of fitness in Form-H as set forth in the First

Schedule to the effect that the vehicle complies for the time being with all the requirements of Chapter V and the Rules made thereunder Section

42(1), prohibits the owner of a transport vehicle using or permitting the use of such vehicle in any public place save in accordance with the

conditions of a permit granted or countersigned by a Regional or State Transport Authority or the Commissioner authorising the use of the vehicle

in that place in the manner in which the vehicle is being used. Section 112 is the penal section, and imposes, on the contraveners of any of the

provisions of the Act or Rules made under the Act a fine of Rs. 100 for the first offence and Rs. 300 if he is again convicted of an offence under

the Act.

The learned Sixth Presidency Magistrate, Saidapet, who tried all these cases, found each of the petitioners guilty as charged and on conviction,

fined each of them with a sum of Rs. 15 under each count, and in default to undergo simple imprisonment for one week. The petitioners have filed

these Revision Cases against the aforesaid conviction and sentence; and the question for consideration is whether, in the circumstances in which the

several cars were made over to the Burmah Shell Company on rent for their use, the vehicles could be deemed to be transport vehicles within the

meaning of Section 38(1) and Section 42(1) of the Act.

A ""Transport vehicle"" as defined in Section 2 Clause (33) means a public service vehicle or a goods vehicle and. ''public service vehicle'' as

defined in Clause (25) means, any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward and includes a motor

cab, contract carriage and stage carriage.

The terms and conditions on which the Burmah Shell Company had taken over the cars appear from a letter addressed by them to the

petitioners in Criminal R.C. 1665 of 1963. They are said to be the same in respect of all other cases. The registration certificate of the cars

according to these conditions should contain an endorsement showing that the vehicle is in the temporary possession of the Company, Registration

fees, tax and insurance premium, it paid by the petitioner initially, would be refunded by the Company, which would also refund the amounts paid

for renewal of such taxes and insurance policy but the same has to be attended to by the petitioners. The petitioners have also to accept liability for

all damage to the vehicle, however, sustained and have further to comprehensively insure the vehicles to include paid drivers as well. The vehicle

has thus to be in the possession of the Company for the duration of the arrangement and after the expiry of the term, the petitioners have to accept

it in its then condition ; but the Company will pay the petitioners for the use of each vehicle, a sum of Rs. 340 per mensem.

The argument of the learned Counsel for the petitioners is that regard being had to the terms of the aforesaid agreement the Company, has to be

deemed to be the owner for the time being, as in effect the petitioners make over the respective vehicles as chattel for the use of the Company and

that even though the arrangement is for a remuneration, the petitioners can never be considered to have let the vehicle as a transport vehicle.

''Owner'' has been defined in Clause (19) of Section 2 of the Act to mean, where the person in possession of a motor vehicle is a minor the

guardian of such minor and in relation to a motor vehicle which is the subject of a hire purchase agreement, the person in possession of the vehicle

under that agreement. The argument, therefore, is that while the respective vehicles cannot be said to have been rented out to the Burmah Shell

Company to be used for the carriage of passengers for hire or reward, since the Company is in possession of the vehicle during the subsistence of

the agreement, the Company has to be deemed to be the owners of the vehicle for the time being. It is also pointed out that the petitioners do not

maintain the driver, pay their salary or meet the cost of petrol or oil; and, indeed, they have no control over the cars after they are made over to the

company.

P.W. 1 the Distribution Manager of the Company has, however, stated that the cars are used as passenger cars by the Company''s staff such as

Salesman and Engineer to go about their business though Burmah Shell people alone are entitled to use the vehicle. The dictionary meaning of a

''passenger'' is ''traveller in public conveyance by land or water'' and ''public'' implies people as a whole or pertaining to the whole people. P.W. 1

had apparently used the word '' passenger '' in a general sense ; but to construe the cars in these cases as transport vehicles, they should be used

for the carnage of passengers or in other words, travellers in public without any distinction. The question then is whether the staff of the Burmah

Shell Company could be construed as travelling public in this sense. I am unable to accept such an interpretation. Nor, having regard to the

definition of �Owner'', the emphasis wherein is on possession, am I inclined to agree that the Burmah Shell Company cannot be deemed to be

the owner when the Company is in the actual possession and control of the cars and the petitioners have no control over them during the

subsistence of the agreement. Taking all these circumstances into consideration, it appears to me that the view taken by the learned Presidency

Magistrate that the cars in these cases are transport vehicles is not justified and that the prosecution of the several petitioners for offences under

Sections 38(1) and 42(1) are not sustainable. In this view, all the petitioners are entitled to acquittal.

Each of the petitioners is accordingly acquitted. The fine, if recovered, will be refunded to each of them.