Principles

·  ROAD TRAFFIC — Third-party insurance requirement — Road Traffic Ordinance 1942, s. 49 — Not violated by carrying excess passengers.

The driver of a car loaded with more passengers than the number permitted by his insurance policy, which provided that the insured should rebate a ratable proportion of the total amount due from the insurer in case of accident according to the number of excess persons, is not guilty of driving without third-party insurance under Road Traffic Ordinance 1942, s.49.

Judgment

 Osman ElTayeb, P. J., August 12, 1957: 1 have refused confirmation of the finding of guilty under Road Traffic Ordinance 1942, s. 49, the sentence and order of disqualification from holding a driving licence, and I send back the case for retrial.

The Policeman who reported the case and on whose evidence the court has to rely, stated at the trial that the driver took 8 passengers, and in the Case Diary he stated that 9 passengers entered the car. In the first place there is a clear contradiction, on which he must be examined. In the second place he did not say, and he was not asked either, whether the 8 or 9 persons included the driver. From the statement of the Case Diary, he can be understood to mean that accused took 9 persons including himself. In the third place I find it difficult to imagine how this Ford Saloon can have a capacity of 8 or 9 persons without the driver. In view of the fact that the capacity of the car is described in the Policy to be for 6 persons including the driver it may seem impossible to believe that this car carried 9 or 10 persons including the driver. These points must be clarified

There is a proviso in the Policy of Insurance on the last page that reads:

“Provided always in the event of accident occurring while the vehicle is carrying more than 6 persons (in addition to the driver and the con ductor if any) the Insured shall repay to the Company a ratable pr portion of the total amount payable by the Company in respect of such accident in connection with such motor vehicle.”

The position of this proviso is after the General Exceptions of the Policy. It seems tome that it means that the risk in the case of any number of persons in the vehicle more than 6 is always covered. The Insurance Company is liable to pay in case of accident, but it reserved a right for itself to claim a ratable proportion from the assured.

If I am right here, then this Policy is a Policy in force in relation to the user of the vehicle within the meaning of Road Traffic Ordinance 1942, s. 49. Again if this conclusion is correct, it may mean that no offence under this section is committed by carrying any number of persons more than that specified in the Policy of Insurance. As a matter of safety any number more than that accepted and agreed upon for the capacity of the vehicle would endanger the security of the vehicle itself or its occupants, and so there would be contravention of the Road Traffic Ordinance 1942, s. 25 (b)

On the other hand, if in this case there is contravention of Road Traffic Ordinance 1942, s. 49, is it not possible to consider that there are special rea sons not to order disqualification from holding a driving licence? The excess of the number of passengers is a circumstance directly connected with the commission of the offence and which the Court ought properly to take into consideration when imposing punishment. See Criminal Court Circular No. 28. Clearly it was the fact constituting the offence. Special reasons are usually found in the circumstances.

According to my own knowledge, the cases where there is contravention of Road Traffic Ordinance 1942, s. 49 are as follows:

(a) No insurance;

(b) Policy of Insurance expired, and not renewed in time;

(c) The driver is unauthorized to drive, such as when he does not hold a driving licence;

(d) The driver has a driving licence under Section 16 but not endorsed under Section 17 to drive a commercial vehicle or a heavy motor vehicle:

(e) The vehicle itself is licensed as a private vehicle and used as a commercial vehicle; and

(f) Violation of any limitations of use, restrictions or exceptions as to liability, contained in the Policy.

In the meantime the driving licence of accused is restored, until the case is retried.