The operator has been put out of business and the director disqualified from holding an O-licence due to lack of qualifications
Following a Public Inquiry (PI) held in Eastbourne on 13 April, Deputy Traffic Commissioner for the South East and Metropolitan Traffic Area John Baker revoked the licence of Kyrah Travels with effect from 0001hrs on 9 May and disqualified Shanmugan Kukesan from holding or obtaining an O-licence as a result of a breach of the Public Passenger Vehicles Act.
Operator Kyrah Travels Limited held a standard national licence (PK2024388) granted on 24 October 2019 authorising two vehicles. The sole director of the company was Shanmugam Kukesan. There was no transport manager nominated on the licence at the time of PI although there was 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 CPC 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 19 October 2021 with the assistance of an interpreter. He said he had been paid for the trip on the 21 July that year 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.
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-19 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.
Mr Kukesan attended the PI with his proposed new transport manager Mr Richard. An interpreter was engaged to assist Mr Kukesan, who represented himself at the hearing. Mr Kukesan was also called to a conjoined conduct hearing as a driver.
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.
The Traffic Commissioner (TC) 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 stated 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 he was stopped. He had understood that an extra period of six months had been allowed for vehicles to be MOT’d during lockdown and this was why one his vehicles had not been tested.
The TC then 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 maintenance records, driver hours analysis and other key evidence requested was not presented. Mr Kukesan did not offer any explanation for this to the TC. Bank statements were submitted but these did not show the level of financial standing (£12,500) required under the licence.
Mr Richard stated in his evidence 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.
The TC was left in no doubt that there had been breaches of Sections 17(3) (aa) and (e) of the Public Passenger Vehicles Act, 1981, that the requirement for financial standing was not met and there had not been a transport manager since December 2020. Considering the encounter that led to the subsequent interview, the TC said he was in no doubt that Mr Kukesan had driven whilst carrying schoolchildren for reward, as he had admitted in interview. Accordingly, the TC did not believe his statements to the contrary, which he said 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 was a matter the TC called very serious. The TC also noted that in interview he said that vehicle RO13 HPX was due to be MOT’d in the week following interview. In reality this did not happen until the 6 April 2022. Mr Kukesan did not produce evidence to demonstrate that the authorised vehicles are being properly inspected and maintained or that the driver he employed was driving in accordance with the hours prescribed. The absence of a transport manager and financial standing were described as compounding factors.
In deciding on the seriousness of the case, the TC said he needed to balance the negative factors with any positives, though noted than in this case he was unable to find anything positive. Consequently, this case fell into the ‘severe’ category as detailed in Statutory Document 10 issued by the Senior Traffic Commissioner.
In relation to the ‘Priority Freight’ question as 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 and can the operator be trusted going forward, the TC said: “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.” Consequently, the TC ordered revocation of this licence with effect from the 0001hrs on 9 May 2022. As a result of the decision, TC Baker said he no longer needed to address the suitability of Mr Richard as transport manager.
After the inquiry had concluded, the TC realised that he had failed to invite representations from the operator during the inquiry in relation to a possible disqualification if revocation of the licence was ordered. An email was subsequently sent to Mr Kukesan on 14 April giving him the chance to make representations and allowing seven 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 dependants 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, the Traffic Commissioner asked himself whether it was necessary and proportionate, and whether Mr Kukesan should be kept away from the industry for a period. Having reflected on the facts in the case and Mr Kukesan’s representations on disqualification, TC Baker concluded that an order was necessary and proportionate, since Mr Kukesan stated that his main livelihood was from driving the vehicle and yet it was shown that he did not hold an entitlement to drive for hire or reward.
The TC said that he had failed to show any evidence of adherence to the fundamental requirements of compliance in terms of maintenance and driver’s hours. He believed that Mr Kukesan presented a risk to the public and as such needed to be kept away from the industry for a period. Should he wish to to reapply for a licence, the TC said that Mr Kukesan he will need to show that his knowledge, qualifications, and attitude is much improved.
Considering that this was the first appearance at at PI for the operator and taking into account the guidance issued by the Senior Traffic Commissioner, the TC ordered a period of disqualification of three years from 9 May 2022. A further order was attached 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 also be subject to revocation, suspension or curtailment.