Decided on August 14,1964

M.K. AHAMED Appellant


- (1.) This Revision Petition is by the second accused in S. T. 353 on the file of the Munsiff Magistrate, Kalpetta. He is the owner of Lorry No. KLD. 2905 and the first accused is the driver. The first accused was found by Pw. 1 driving the vehicle on the public road at Ambalavayal which is a prohibited route for lorries. Pw. 1 checked the permit and found that the lorry had no permit to ply on that road. There is also a Government notification prohibiting lorry traffic along that road. Pw. 1 gave evidence in support of the charge and the first accused admitted having driven the lorry along the road and his permit being checked by Pw. 1. The second accused pleaded that he was not aware of the fact that the driver took the lorry along the said route and that it was done without his knowledge and consent. The learned Magistrate found both the accused guilty under S.42(1) read with S.123 of the Motor Vehicles Act and sentenced them to pay a fine of Rs. 50/- each. The second accused is the revision petitioner.
(2.) The order of conviction is challenged by the learned counsel for the revision petitioner on a twofold ground (i) that the lorry was not "used" as it was found empty and (ii) that there is no evidence that the owner permitted the driver to take the vehicle along the said route. Both the objections are well taken.
(3.) S.42 of the Motor Vehicles Act reads as follows: '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 Transport Authority (or the Commission) authorising the use of the vehicle in that place in the manner in which the vehicle is being used:" There is a well defined distinction in the Act between driving and using a vehicle. Consistent with the other provisions of the Act the word "used" in S.42 can only mean the use of the vehicle for the purpose for which the permit is granted, viz., for carrying passengers or goods. This was the view taken by the Madras High Court in In re T. V. Moidu, AIR 1960 Mad. 265 where it was held that: ".... where an empty lorry was found at a place outside the route for plying and it was not in the course of business covered by the permit but because it was a short cut route, the provisions of S.42 and 123 of the Motor Vehicles Act could not be said to have been offended." The same is the view taken by the Allahabad High Court in State of U.P. v. Abdul Latif, AIR 1963 All. 229. In this case Ext. P 2 the G. V. R. issued by Pw. 1 shows that the lorry when checked was empty and there is no evidence that it was being used for transporting goods.;

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