Section 113 (3) Motor Vehicles Act | Owners Also Liable When Vehicle Driven With Excess Weight: Kerala High Court

The Kerala High Court on Friday observed that owners of the vehicles are also liable to be prosecuted under Section 113(3) of the Motor Vehicles Act, 1988 in case they have permitted the vehicle to be driven with excess weight. 

Hearing a batch of petitions challenging the proceedings initiated under Sections 113(3)(b) r/w. Section 194(1) of the Motor Vehicles Act, the court said the complaints raise specific allegations against the registered owners of the vehicles that they had permitted the vehicle to be driven with excess weight.

Justice Ziyad Rahman A.A. took note of  the 'presumption' stipulated under Section 113(4) that when the the driver or person in charge of the vehicle being driven in contravention to the stipulations of the provision is not the owner, the Court may "presume that the offence was committed with the knowledge of or under the orders of the owner of the motor vehicle or trailer". 

It had been contended before the court that the presumption is only available in respect of the offence under Section 113(3)(a) which deals with unladen weight of the vehicle, and that in the absence of any presumption the owner of the said vehicle cannot be prosecuted.

"...it is evident that both the acts, namely, the driving of a vehicle with excess weight (unladen or laden) as well as causing or allowing the driving of the vehicle with excess weight, would attract the offences, and these are separate offences which could be committed by different persons. On going through the complaints submitted in all these cases, there are specific allegations against the respective registered owners that they have permitted the vehicle to be driven with excess weight and, therefore by virtue of the stipulation contained in Sub section (3), the registered owners are liable to be prosecuted for the offence under Subsection (3) of Section 113 of the Motor Vehicles Act," the court observed.

As regards the 'presumption' contemplated under Section 113 (4), the court said it will "not affect the commission of the offence" and that the same can have relevance during the trial.

"When a presumption exists in favour of the prosecution, the burden of prosecution to establish the offence is much lesser. However, merely because, the circumstances are not in existence for attracting the presumption, that cannot result in a finding that no offence at all is attracted, but on the other hand, the lack of presumption would make the burden of prosecution heavier. Thus, as far as this case is concerned, the offence would be attracted, if the ingredients contemplated under Subsection (3) of Section 114 are made out from the complaint. In such event, the prosecution can be launched against all the persons who committed the aforesaid offences, irrespective of the question whether presumption, as contemplated under Sub section (4) of Section 113 of the Motor Vehicles Act, is attracted or not. In such circumstances, I do not find any merit in the said contentions". 

The petitioners had challenged the prosecution initiated against them by the Motor Vehicles Inspector, alleging the offences punishable under Sections 113(3)(b) r/w Section 194(1) of the MV Act, 1988. The allegation against the petitioners, who are the drivers and registered owners of the vehicles, in these cases is that they had carried excess load in their goods carriages and hence committed the offences.  

The counsel representing the petitioners contended the proceedings initiated against them are not legally sustainable as offences alleged against them are non-cognizable, and hence the final report of the Motor Vehicle Inspector could not be taken cognizance of by the Magistrate.

However, the Court said the prosecution has been initiated based on complaints submitted by the Motor Vehicle Inspector, and that none of them are based on any police report as contemplated under Section 173(2) Cr.P.C.

The petitioners had also contended that since Section 113 (4) contemplates a presumption to be drawn by the concerned Court, it was improper for the complainant to draw such presumption at the time of filing the complaint.

The Court said in none of the cases under challenge, the complaint had been submitted based on the presumption enshrined in the provision. 

"On the other hand....the complaint contains materials for attracting the ingredients contemplated under Sub section (3) of Section 113 of the Act, and therefore the complaint can be proceeded with, independent of the presumption as referred to above," it observed. 

The petitioners also submitted that the amount of penalty payable by the accused in the event of being found guilty has been specified in the complaint, and that a prayer has also been incorporated in the complaint for directing the accused persons to pay the fine as per the rates stipulated in a government order. It was submitted that such a prayer is not permissible.

The court said although reference has been made to the government order in some of the complaints, they cannot not be treated as vitiated for such reason

"If there are sufficient averments in the complaint for prosecuting the accused on the basis of materials placed on record, nothing would preclude the court from taking cognizance," the court observed. 

The counsels for the petitioner then contended that as per Section 114 of the M.V. Act, 1988, "when it is found that the vehicle is carrying excess weight, the Officer concerned may, by an order, direct the driver to off-load the excess weight at his own risk and not to remove the vehicle or trailer from that place until the laden weight has been reduced or the vehicle or trailer has otherwise been dealt".

It was submitted in none of the cases, any document has been produced indicating the compliance of the

However, the court rejected the submission and said:

"...in my view, even if it is taken as a violation, it cannot be treated as something that would vitiate the prosecution. As far as the issuance of an order to off-load the excess weight is concerned, the same is a subsequent event after the detection of the offence. Once the vehicle was found to be carrying excess weight, the offence under Subsection (3) of Section 113 would get attracted and merely because of the reason that the officer concerned failed to pass an order directing the driver to off-load the excess weight, the proceedings would not be vitiated and efface the offence already committed by the accused persons". 

The Court added that since the provision uses the term 'may', it can only be envisaged as "an enabling provision which empowers the Officer concerned to pass such a direction so as to avoid continued violation of Subsection (3) of Section 113 of the Motor Vehicles Act". 

The Court, accordingly, dismissed the petitions. 

Case Title: Fasaludheen A. & Anr. v. State of Kerala & Anr. and other connected matters

Citation: 2023 LiveLaw (Ker) 39

Click Here To Read/Download The Order