Decision

Decision for Kyrah Travels Limited

Published 11 May 2022

0.1 SOUTH EAST AND METROPOLITAN TRAFFIC AREA

0.2 DECISION OF THE DEPUTY TRAFFIC COMMISSIONER

1. PUBLIC INQUIRY HEARD AT IVY HOUSE, IVY TERRACE, EASTBOURNE ON 13 APRIL 2022

1.1 PK2024388 KYRAH TRAVELS LIMITED

2. Background

The operator Kyrah Travels Limited is the holder of a standard national licence granted on the 24 October 2019 authorising two vehicles. The sole director of the company is Shanmugam Kukesan. There is currently no transport manager nominated on the licence although there is an application to approve Prabhu Richard.

On the 21 July 2021 vehicle RX64 MWW was stopped by an officer from the DVSA. The driver of the vehicle was Shanmugam Kukesan who said that he was on a journey from Harrow to Slough and had transported children to school. A check on Mr Kukesan’s driving licence showed that he held provisional entitlements for large goods vehicles and passenger carrying vehicles. Because of the date when his full car licence was issued, he also held a D1 entitlement which allowed him to drive vehicles with up to 16 seats, but a “101” restriction limited the driving to occasions which were other than for hire or reward. Enquiries also revealed that Mr Kukesan did not hold a driver CPS qualification or a driver tachograph card, The tachograph in the vehicle was defective and there was no legal lettering or schoolchildren signage on the vehicle.

Mr Kukesan was interviewed on the 19 October 2021 with the assistance of an interpreter and said he had been paid for the trip on the 21 July 2021 but was unaware of the restriction on his driving licence or the requirement for a CPC qualification. He said he had been driving the vehicle since April 2021 but had not done so before then. He promised to remedy the defect in the tachograph unit and to correct the signage. During the interview it was pointed out to Mr Kukesan that one of the authorised vehicles did not have an MOT as it had expired on the 28 August 2021. He stated that the test was booked for the following week.

When asked about the transport manager Tarun Vanmali who was nominated on the licence Mr Kukesan said that he had died as a result of a Covid infection and that he had no contact with him since December 2020. On the 28 January 2022 an application was made to approve Prahu Richard as a new transport manager.

3. The Public Inquiry

Mr Kukesan attended the public inquiry with the proposed transport manager Mr Richard. An interpreter was engaged to assist Mr Kukesan who was not represented. Mr Kukesan was also called to a conjoined conduct hearing as a driver and the note of this decision is sent under separate cover.

4. Evidence

Traffic Examiner D’Cruze confirmed the contents of her report and detailed the restriction applicable to Mr Kukesan’s use of the authorised vehicle. At this point Mr Kukesan said that he had driven to the site of the encounter to pick up another driver whose vehicle had broken down. Ms D’Cruze said that in interview Mr Kurkesan had been asked twice if he had dropped schoolchildren off and he had agreed that he had. There had been no mention of collecting another driver. Reference to another vehicle had been made but it was stated that this vehicle was being repaired with no mention of a breakdown.

I asked whether insurance cover for the vehicle would have been invalidated if Mr Kukesan drove other than in accordance with the restrictions on his driving licence. Ms D’Cruze said that she thought this was the case but the police had checked the insurance cover which was valid. She believed Mr Kukesan was allowed to continue to drive after the encounter because he was no longer doing so for hire or reward.

Mr Kukesan told me that he had not said he had dropped schoolchildren off, and he had always known of the restriction on his licence. His journey had been to recover the driver of his other vehicle after that had broken down and that driver had left by time Mr Kukesan was stopped. He understood an extra period of six months had been allowed to allow for vehicles to be MOT’s during lockdown and this was why one his vehicles had not been tested.

I pointed out to Mr Kukesan that the call-up letter had listed a range of documentation that he was required to produce before the inquiry. He had a few documents on the day of the hearing but there were no PMI records, driver hours analysis and other key evidence requested. Mr Kukesan did not give any explanation for this. Bank statements were submitted but these did not show the level of financial standing (£12,500) required under the licence.

Mr Richard told me that he had his own licence authorising one vehicle and was applying to be approved on this one. He said that the problems encountered by Mr Kukesan were due mainly to lack of communication and it was hoped he could be given another chance to try to get things right.

5. Findings and Decision

There is no doubt in this case that there have been breaches of Sections 17(3) (aa) and (e) of the Public Passenger Vehicles Act, 1981.It is also the case that the requirement for financial standing is not currently met and there has not been a transport manager since December 2020. Dealing with the encounter that led to the subsequent interview I am in no doubt that Mr Kukesan had driven whilst carrying schoolchildren for reward which is what he admitted in interview. His statements to the contrary are not believed and show that he is a person who will lie to try and avoid the consequences of his actions. The fact that he drove when not entitled to do so thereby invalidating insurance cover is very serious. I also note that in interview he said that vehicle RO13HPX was due to be MOT’d in the week following interview whereas this did not happen until the 6 April 2022. He has not produced evidence to demonstrate that the authorised vehicles are being properly inspected and maintained or that the driver he employs is driving in accordance with the hours prescribed. The absence of a transport manager and financial standing are compounding factors.

In deciding on the seriousness of the case I need to balance the negative factors with any positives although in this case I am unable to find anything positive. Consequently, this case falls into the severe category as detailed in Statutory Document 10 issued by the Senior Traffic Commissioner. I have asked myself the question set out in the case of Priority Freight Limited & Paul Williams i.e. how likely is it that this operator will operate in compliance with the operator’s licensing regime? In other words, can the operator be trusted going forward? My answer to this question is negative for the reasons already stated and I believe that the operator deserves to be put out of business. He has failed to demonstrate compliance with the terms of his licence across most areas and has been dishonest when giving evidence.

I therefore order revocation of this licence with effect from the 00.01 hours on the 9 May 2022. Considering my decision, I do not need to address the suitability of Mr Richard as transport manager.

After the inquiry had concluded I realised that I had not invited representations from the operator at the inquiry in relation to a possible disqualification if revocation was ordered. I therefore caused an e mail to be sent to Mr Kukesan on the 14 April giving him the chance to make representations and allowing 7 days for a response. Mr Kukesan submitted a letter dated 20 April saying, “a disqualification would affect me severely. I wish to state that I am the director of the company, and my main livelihood is from driving the vehicle and if the licence is cancelled my livelihood will be affected severely. I have three children and all of them are my dependents and I have lost my wife and am looking after my children. I wish to respectfully state that I have been driving for the past three years and I cannot engage in any other work. I also suffer from some medical issues and I am a person who cannot engage in many other vocations.”

In deciding whether to order a period of disqualification I need to consider whether this is necessary and proportionate and whether Mr Kukesan should be kept away from the industry for a period. Having reflected on the facts in this case and Mr Kukesan’s representations on disqualification I conclude that an order is necessary and proportionate. Mr Kukesan has stated that his “main livelihood is from driving the vehicle” and yet he does not hold an entitlement to drive for hire or reward. He has failed to show any evidence of adherence to the fundamental requirements of compliance in terms of maintenance and driver’s hours. I believe that he presents a risk to the public and needs to be kept away from the industry for a period. If after that time he decides to reapply for a licence he will need to show that his knowledge, qualifications, and attitude is much improved.

As this is the first public inquiry for the operator and taking into account the guidance issued by the Senior Traffic Commissioner the period of disqualification is for three years which will take effect at 00.01 hours on the 9 May 2022. I also make an order pursuant to Section 28 (4) of the Transport Act, 1985 that if during that time Shanmugan Kukesan is a director, partner or holds a controlling interest in any company which holds a licence that licence shall be subject to revocation, suspension or curtailment.

John Baker

Deputy Traffic Commissioner

28 April 2022