Singh v Police [1957] FJLawRp 10; [1956-1957] 5 FLR 58 (7 June 1957)

[1956-1957] 5 FLR 58

IN THE SUPREME COURT OF FIJI

Appellate Jurisdiction

Criminal Appeal No. 26 of 1957

HARNAM SINGH
RAGHUNATH SINGH
Appellants

v.

THE POLICE
Respondent

Motor Vehicles (Third Party Insurance) Ordinance-section 4-special reasons for not imposing disqualification.

The appellants, who had pleaded guilty to contravening section 4 of the·Motor Vehicles (Third Party Insurance) Ordinance, appealed against the magistrate's rejection of their" special reasons" for not imposing a disqualication. The first appellant, a bus driver, was driving the bus in respect of which the Third Party Insurance had expired, but was unaware of its expiry. The second appellant was the brother of the first appellant, and a partner in and business manager of the firm which operated a fleet of buses of which this vehicle was one. He admitted that he authorized the first appellant to drive the vehicle at the material time and was aware of the date of expiry of the material time and was aware of the date of expiry of the Insurance Policy. He claimed that through absence from Suva on business he was unable to renew the policy before its expiration.

Held:-

(1) As regards the first appellant, once it is conceded that it was not the accused's duty in his employment to arrange for the insurance of the bus he drove and that he drove it on the instruction of his employer assuming that his employer had complied with the law, there are" special reasons", on the authority of Blows v. Chapman [1947] 2 AER 576.

(2) As regards the second appellant, when a person deliberately chooses of his own free will to place himself in such a position that he cannot comply with the provisions of the Motor Vehicles (Third Party Insurance) Ordinance, he cannot be heard afterwards to rely on those circumstances as "special reasons" why he should not suffer the consequences laid down in the Ordinance.

Appeal of first appellant allowed. Appeal of second appellant dismissed.

Cases referred to:

Blows v. Chapman [1947] 2 All ER 576.

Pilbury v. Brazier [1950] 2 All ER 835.

P. Rice for the appellants.

A. M. Greenwood, Solicitor-General, for the respondent.

HAMMETT, J. [7th June, 1957]-

Judgment:

This is an appeal from the decision of the Magistrate's Court sitting at Suva dated 3rd April, 1957, whereby the first appellant was convicted of using and the second appellant of permitting the use of a motor vehicle not insured in respect of Third Party Risks contrary to section 4 of the Motor Vehicles (Third Party Insurance) Ordinance, 1948. Both the appellants pleaded guilty but set up "special reasons" why they should not be disqualified from holding driving licences. The learned trial magistrate held that the facts did not constitute" special reasons" and it is against that decision that the two appellants now appeal.

The first appellant is a bus driver. On 28th September, 1956, he was driving a bus when he was stopped by the police. It was then discovered that the Third Party Insurance in respect of the vehicle had expired on 26th September, 1956. Learned counsel for the appellant in the court below and at the hearing of the appeal relied on the decision in the case Blows v. Chapman [1947] 2 AER 576 in which the facts bear certain similarities to the facts in this case. It concerned the driver of a farm tractor. In the course of his judgment in the Divisional Court, Singleton J. said-

"He (the tractor driver) was in my view entitled to assume that his employer had complied with the law on that day as he had each day before. It is not the duty of a workman to ask his employer each day, 'is this vehicle insured?'."

It was held that the fact that the tractor driver had driven the tractor on the instructions of his employer and had assumed that the vehicle was insured when in fact it was not, did constitute special reasons for refraining from ordering the tractor driver to be disqualified from holding a driving licence.

The learned trial magistrate distinguished this case from the decision in Blows v. Chapman on the grounds that-

(a) a bus driver is not a workman, in the same category as a farm labourer who drives a tractor,

(b) that the first appellant was the brother of the second appellant, the owner of the vehicle, who manages a fleet of buses, and

(c) in Blows v. Chapman the tractor concerned was one of three tractors of which one was covered by insurance and the other two not because they were not normally used on the highway, whereas in this case every bus the appellant drove should have been covered by Third Party Insurance.

With the greatest respect to the learned trial magistrate, I do not think that these factors are really very material in the light of the broad principle laid down by the case of Blows v. Chapman and so categorically stated by Singleton J. Once it is conceded that it was not the accused's duty in his employment to arrange for the insurance of the bus he drove and that he drove it on the instruction of his employer assuming that his employer had complied with the law, there are in my opinion in law" special reasons" within the meaning of that term on the authority of the decision of Blows v. Chapman.

I would like however to make it clear that the fact that there are special reasons for not disqualifying the appellant from holding a driving licence does not preclude the court from exercising its discretion to order the disqualification. Where there are no special reasons it is mandatory under section 4 to order disqualification-Where there are special reasons the court has a discretion whether to order disqualification or not.

I am in complete agreement with the learned trial magistrate when he said " As a driver of a Public Service Vehicle he (the first appellant) should be concerned whether his vehicle is insured or not".

If, therefore, the learned trial magistrate had, in the exercise of his discretion, ordered a disqualification it would appear to have been a proper exercise of such a discretion.

I have considered whether, in these circumstances, although I am of the opinion that the facts in this case in respect of the first appellant do amount to "special reasons", the period of disqualification ordered by the court below should not be allowed to stand. Learned counsel for the first appellant has pointed out that there is no reported case of this course having been adopted before. Since there do not appear to be any particularly cogent reasons why this power should be exercised by the appeal court in this case and the Crown has not asked that it should be so exercised, I do not propose to adopt that course.

The second appellant is a partner in and the business manager of the firm that operates a fleet of buses of which this is one. In the insurance policy he is described as the owner. He admitted he authorized the first appellant to drive the vehicle at the material time and stated that he was aware that the insurance policy would expire on 26th September, 1956. As "special reasons" for not ordering disqualification in his case it was stated that he went away on business shortly before the expiry of the policy and was prevented by these same business reasons, from returning to Suva to take out a fresh policy until after the expiry of the policy. The learned trial magistrate did not believe the second appellant's evidence on the point but said he believed the second appellant did not take out a new policy owing to an oversight. In the grounds of appeal it is urged that in either event there were special reasons for not ordering a disqualification.

The second appellant's own evidence is to the effect that he chose to go away on business shortly before the expiry of the policy of insurance and chose to stay away for his own business reasons longer than he anticipated with the result that he did not return to Suva until after the policy had expired. A person who deliberately chooses of his own free will to place himself in such a position that he cannot comply with the provisions of the Motor Vehicles (Third Party Insurance) Ordinance, 1948, cannot be heard afterwards to rely on those circumstances as "special reasons" why he should not suffer the consequences laid down in the Ordinance. In my opinion the learned trial magistrate was perfectly correct in holding that the second appellant's explanations of his delay in taking out the required policy of insurance were not" special reasons" for not ordering the disqualification.

Learned counsel for the second appellant also relied on the decision of the Divisional Court in Pilbury v. Brazier [1950] 2 AER 835, in view of the belief expressed by the learned magistrate that the second appellant did not renew the insurance policy due to an oversight.

In that case it was held that where authorized insurers state that although under the terms of a particular policy giving periodic cover over a number of vehicles, one particular motor vehicle was not actually covered for a short period due to an oversight, but that they would nevertheless in the particular circumstances have been willing to meet any claim made, these facts constituted" special reasons".

But these considerations do not arise in this case. To begin with the Insurance Company concerned has not intimated that it would have been willing to meet any claim made in the circumstances of this case. Again there is no question of the insurance in this case being continuous. The old policy expired on 26th September, 1956, and the new policy which was eventually issued did not give cover as from that date but as from 28th September, 1956. It is not necessary for me to refer to the other dissimilarities. In my opinion, with the greatest respect to learned counsel, the principle laid down by Pilbury v. Brazier is not applicable to the facts of this case.

I therefore allow the appeal of the first appellant against the order for disqualification made against him and I dismiss the appeal of the second appellant.