Tribal Welfare Commissioner vs Anju Devi
2021 Latest Caselaw 2262 Jhar

              IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   (Civil Miscellaneous Appellate Jurisdiction)
                          M.A. No. 683 of 2018
                                ......

Tribal Welfare Commissioner, TWE, Project Building, Dhurwa, Ranchi ....... Appellant Versus

1. Anju Devi

2. Pratibha Kumari

3.Nirmala Kumari

4.Kalpana Kumari

5.Sangita Kumari

6.Ajay Kachhap

7.Shiva Oraon ......Respondents

CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO (Through : Video Conferencing) For the Appellant : Mr. Rajesh Lala, Advocate For the Respondent No.7 : Ms. Rishi Bharti, Advocate ....

05/Dated: 08/07/2021.

1. Heard, learned counsel for the appellant, Mr. Rajesh Lala and learned counsel for the respondent no.7, Rishi Bharti.

2. The instant Misc. Appeal has been preferred by the appellant- Tribal Welfare Commissioner (O.P. No.1) against the Award dated 08.03.2018, passed by the learned Presiding Officer, Motor Vehicle Accident Claim Tribunal, Ranchi in Motor Accident Claim Case No.48/2010 whereby the claimants, namely, 1. Anju Devi, 2 Pratibha Kumari, 3. Nirmala Kumari, 4. Kalpana Kumari and 5. Sangita Kumari, all R/o Village- Pushu, P.O. & P.S. Pithoria, District Ranchi, have been awarded compensation to the tune of Rs.19,80,544/- along with interest @ 9% per annum from the date of admission of the claim application under Section 166 of the MV Act i.e. 14.08.2015 till its realization. The Award has been passed against the Tribal Welfare Commissioner, Ranchi being O.P. No.1 before the learned Tribunal and Group leader (GL) namely, Shiva Oraon and nine others (O.P. No.3) are jointly and severally liable to pay the compensation to the claimants. However, the Tribal Welfare Commissioner has been given right to recover the compensation amount against the joint co-owners of the offending bus after satisfying the awards to the claimants with regard to their share, not with regard to share of compensation awarded against the Tribal Welfare Commissioner, Ranchi.

3. Learned counsel for the appellant, Mr. Rajesh Lala has assailed the

impugned award on the ground that the learned Tribunal failed to appreciate the fact, that under valid agreement, the actual control of the bus was with group of ten Tribals under Group leader, Shiva Oraon. The driver of the offending bus was under their control, directions & commands and they were earning profit from the business and thus they were the owners of the bus for the purpose of Section 2(30) of the Motor Vehicle Act, 1988.

4. Learned counsel for the appellant has further submitted, that the learned Tribunal has wrongly fastened the liability upon the Tribal Welfare Commissioner, Ranchi by holding that Tribal Welfare Commissioner shall also make payment of his share of compensation along with the compensation as payable by Shiva Oraon and nine others and thereafter to realize the same from ten Tribals with regard to their respective shares meaning thereby one share, there out of eleven shares has to be borne by the Tribal Welfare Commissioner, Ranchi for indemnifying the compensation amount to the claimants.

5. Learned counsel for the appellant has further submitted that the learned Tribunal has misconstrued in considering Tribal Welfare Commissioner, Ranchi as the one of owner of the bus, on the basis of his name mentioned in the registration certificate of the bus along with group leader, Shiva Oraon and nine others.

6. Learned counsel for the appellant in support of his submission has placed reliance upon the judgment passed by the Apex Court in the case of Rajasthan State Road Transport Corporation vs. Kailash Nath Kothari & Ors., reported in 1997 (7) SCC 481, para 17 of which may profitably be quoted hereunder:-

17. The definition of owner under Section 2(19) of the Act is not exhaustive. It has, therefore to be construed, in a wider sense, in the facts and circumstances of a given case. The expression owner must include, in a given case, the person who has the actual possession and control of the vehicle and under whose directions and commands the driver is obliged to operate the bus. To confine the meaning of "owner" to the registered owner only would in a case where the vehicle is in the actual possession and control of the hirer not be proper for the purpose of fastening of liability in case of an accident. The liability of the "owner" is vicarious for the tort committed by its employee during the course of his employment and it would be a question of fact in each case as to on whom can vicarious liability be fastened in the case of an accident. In this case, Shri Sanjay Kumar, the owner of the bus could not ply the bus on the particular route for which he had no permit and he in fact was not plying the bus on that route. The services of the driver were transferred along with complete "control" to RSRTC, under whose directions, instructions and command the driver was to ply or not to ply the ill-fated bus on the fateful day. The

passengers were being carried by RSRTC on receiving fare from them. Shri Sanjay Kumar was therefore not concerned with the passengers travelling in that bus on the particular route on payment of fare to RSRTC. Driver of the bus, even though an employee of the owner, was at the relevant time performing his duties under the order and command of the conductor of RSRTC for operation of the bus. So far as the passengers of the ill-fated bus are concerned, their privity of contract was only with the RSRTC to whom they had paid the fare for travelling in that bus and their safety therefore became the responsibility of the RSRTC while travelling in the bus. They had no privity of contract with Shri Sanjay Kumar, the owner of the bus at all. Had it been a case only of transfer of services of the driver and not of transfer of control of the driver from the owner to RSRTC, the matter may have been somewhat different. But on facts in this case and in view of Conditions 4 to 7 of the agreement (supra), the RSRTC must be held to be vicariously liable for the tort committed by the driver while plying the bus under contract of the RSRTC. The general proposition of law and the presumption arising therefrom that an employer, that is the person who has the right to hire and fire the employee, is generally responsible vicariously for the tort committed by the employee concerned during the course of his employment and within the scope of his authority, is a rebuttable presumption. If the original employer is able to establish that when the servant was lent, the effective control over him was also transferred to the hirer, the original owner can avoid his liability and the temporary employer or the hirer, as the case may be, must be held vicariously liable for the tort committed by the employee concerned in the course of his employment while under the command and control of the hirer notwithstanding the fact that the driver would continue to be on the payroll of the original owner. The proposition based on the general principle as noticed above is adequately rebutted in this case not only on the basis of the evidence led by the parties but also on the basis of Conditions 6 and 7 (supra), which go to show that the owner had not merely transferred the services of the driver to the RSRTC but actual control and the driver was to act under the instructions, control and command of the conductor and other officers of the RSRTC.

7. Learned counsel for the appellant has further placed reliance upon the judgment passed by the Apex Court in the case of National Insurance Co. Ltd. v. Deepa Devi, (2008) 1 SCC 414 , at paras 10, 15, 17 and 19, which may profitably be quoted hereunder:-

10. Parliament either under the 1939 Act or the 1988 Act did not take into consideration a situation of this nature. No doubt, Respondents 3 and 4 continued to be the registered owners of the vehicle despite the fact that the same was requisitioned by the District Magistrate in exercise of the power conferred upon him under the Representation of the People Act. A vehicle is requisitioned by a statutory authority, pursuant to the provisions contained in a statute. The owner of the vehicle cannot refuse to abide by the order of requisition of the vehicle by the Deputy Commissioner. While the vehicle remains under requisition, the owner does not exercise any control thereover. The driver may still be the employee of the owner of the vehicle but he has to drive it as per the direction of the officer of the State, who is put in charge thereof. Save and except for legal ownership, for all intent and purport, the registered owner of the vehicle loses entire control thereover. He has no say as to whether the vehicle should be driven at a given point of time or not. He cannot ask the driver not to drive a vehicle on a bad road. He or the driver could not possibly say that the vehicle would not be driven in the night. The purpose of requisition is to use the vehicle. For the period the vehicle remains under the control of the State and/or its officers, the owner is only entitled to payment of compensation therefor in terms of the Act but he cannot not (sic) exercise any control thereupon. In a situation of this nature, this Court must proceed on the presumption that Parliament while enacting the 1988 Act did not envisage such a situation. If in a given situation, the statutory definitions contained in the 1988 Act cannot be given effect to in letter and spirit, the same should be understood from the common sense point of view.

15. In Kailash Nath Kothari [(1997) 7 SCC 481] , however, this Court in a case,

where a bus was given on lease by the owner of the vehicle Shri Sanjay Kumar in favour of Rajasthan State Road Transport Corporation, held that when an accident takes place when the bus was plied under the control of the Corporation, it was the Corporation alone who would be liable for payment of compensation, stating: (SCC p. 488, para 17) "17. ... Driver of the bus, even though an employee of the owner, was at the relevant time performing his duties under the order and command of the conductor of RSRTC for operation of the bus. So far as the passengers of the ill- fated bus are concerned, their privity of contract was only with RSRTC to whom they had paid the fare for travelling in that bus and their safety therefore became the responsibility of RSRTC while travelling in the bus. They had no privity of contract with Shri Sanjay Kumar, the owner of the bus at all. Had it been a case only of transfer of services of the driver and not of transfer of control of the driver from the owner to RSRTC, the matter may have been somewhat different. But on facts in this case and in view of Conditions 4 to 7 of the agreement (supra), RSRTC must be held to be vicariously liable for the tort committed by the driver while plying the bus under contract of RSRTC. The general proposition of law and the presumption arising therefrom that an employer, that is the person who has the right to hire and fire the employee, is generally responsible vicariously for the tort committed by the employee concerned during the course of his employment and within the scope of his authority, is a rebuttable presumption. If the original employer is able to establish that when the servant was lent, the effective control over him was also transferred to the hirer, the original owner can avoid his liability and the temporary employer or the hirer, as the case may be, must be held vicariously liable for the tort committed by the employee concerned in the course of his employment while under the command and control of the hirer notwithstanding the fact that the driver would continue to be on the payroll of the original owner. The proposition based on the general principle as noticed above is adequately rebutted in this case not only on the basis of the evidence led by the parties but also on the basis of Conditions 6 and 7 (supra), which go to show that the owner had not merely transferred the services of the driver to RSRTC but actual control and the driver was to act under the instructions, control and command of the conductor and other officers of RSRTC."

17. In National Insurance Co. Ltd. v. Durdadahya Kumar Samal [(1988) 2 TAC 25 (Ori)] where the vehicle was requisitioned by the Collector for election duty, the High Court of Orissa held:

"In a vehicle requisitioned, the driver remains under the control of the Collector and by such driving the vehicle he can be accepted to have been employed by the Collector. Thus, the Collector would be vicariously liable for the act of the driver in the present case."

19. We, therefore, are of the opinion that the State shall be liable to pay the amount of compensation to the claimants and not the registered owner of the vehicle and consequently the appellant herein.

8. Learned counsel for the appellant has further placed reliance upon the judgment passed by the Apex Court in the case of Godavari Finance Co. v. Degala Satyanarayanamma, reported in (2008) 5 SCC 107, at paras 6, 7, 12, 13, 16, 17, 18 and 19, which may profitably be quoted hereunder:-

6. The name of the appellant as a financer indisputably was incorporated in the registration book of the vehicle. However, the extract of registration book revealed that the vehicle was registered in the name of the fourth respondent only w.e.f. 3-6-1992. It further revealed that the said vehicle was held under a hire-purchase agreement with the appellant w.e.f. 6-2-1995 which was cancelled on 10-11-1995.

7. The appellant herein filed a written statement stating that on the date of accident the ownership of the vehicle was solely with the fourth respondent and not with the appellant. The Motor Accidents Claims Tribunal by a judgment

dated 28-10-1998 awarded a sum of Rs 2,08,000 in favour of Respondents 1 and

2. The objection of the appellant that it was not liable to pay any amount of compensation together with the owner of the vehicle, driver and insurance company was rejected by the Tribunal stating:

"In the light of the decisions cited above, the legal position that emerges is that it is the person who is in actual possession and control of the vehicle, who can be brought under the definition of owner, under the Act in order to make him tortiously liable for the acts of the servant and the burden lies upon the party, who asserts it and on their failure adverse inference can be drawn and the financier can also be fastened with liability along with the registered owner. In our case, R-4 except taking a plea that the vehicle is under the control of the owner R-2, it failed to file documents to show the nature of the transaction between it and R-2 and who is in actual control of the vehicle. The mere fact that RW 1, widow of the deceased admitted in her evidence that the vehicle belongs to R-2 and it is in his custody, in my view, it cannot absolve R-4 from the burden of establishing this fact in order to avoid the liability. PW 1, a widow and a third party cannot be attributed with knowledge of control over the vehicle and the actual contract between the parties. Thus, it is quite evident that R-2 and R-4 did not place any material to show as to who is in actual control of the vehicle and what are the rights of R-4 over it."

12. Section 2 of the Act provides for interpretation of various terms enumerated therein. It starts with the phrase "Unless the context otherwise requires". The definition of "owner" is a comprehensive one. The interpretation clause itself states that the vehicle which is the subject-matter of a hire-purchase agreement, the person in possession of vehicle under that agreement shall be the owner. Thus, the name of financer in the registration certificate would not be decisive for determination as to who was the owner of the vehicle. We are not unmindful of the fact that ordinarily the person in whose name the registration certificate stands should be presumed to be the owner but such a presumption can be drawn only in the absence of any other material brought on record or unless the context otherwise requires.

13. In case of a motor vehicle which is subjected to a hire-purchase agreement, the financer cannot ordinarily be treated to be the owner. The person who is in possession of the vehicle, and not the financer being the owner would be liable to pay damages for the motor accident.

16. The question came up for consideration before this Court in Rajasthan SRTC v. Kailash Nath Kothari [(1997) 7 SCC 481] where the owner of a vehicle rented the bus to Rajasthan State Road Transport Corporation. It met with an accident. Despite the fact that the driver of the bus was an employee of the registered owner of the vehicle, it was held: (SCC p. 488, para 17) "17. ... Driver of the bus, even though an employee of the owner, was at the relevant time performing his duties under the order and command of the conductor of RSRTC for operation of the bus. So far as the passengers of the ill- fated bus are concerned, their privity of contract was only with RSRTC to whom they had paid the fare for travelling in that bus and their safety therefore became the responsibility of RSRTC while travelling in the bus. They had no privity of contract with Shri Sanjay Kumar, the owner of the bus at all. Had it been a case only of transfer of services of the driver and not of transfer of control of the driver from the owner to RSRTC, the matter may have been somewhat different. But on facts in this case and in view of Conditions 4 to 7 of the agreement (supra), RSRTC must be held to be vicariously liable for the tort committed by the driver while plying the bus under contract of RSRTC. The general proposition of law and the presumption arising therefrom that an employer, that is, the person who has the right to hire and fire the employee, is generally responsible vicariously for the tort committed by the employee concerned during the course of his employment and within the scope of his authority, is a rebuttable presumption. If the original employer is able to establish that when the servant was lent, the effective control over him was also transferred to the hirer, the original owner can avoid his liability and the temporary employer or

the hirer, as the case may be, must be held vicariously liable for the tort committed by the employee concerned in the course of his employment while under the command and control of the hirer notwithstanding the fact that the driver would continue to be on the payroll of the original owner. The proposition based on the general principle as noticed above is adequately rebutted in this case not only on the basis of the evidence led by the parties but also on the basis of Conditions 6 to 7 (supra), which go to show that the owner had not merely transferred the services of the driver to RSRTC but actual control and the driver was to act under the instructions, control and command of the conductor and other officers of RSRTC."

17. The question again came up for consideration recently before this Court in National Insurance Co. Ltd. v. Deepa Devi [(2008) 1 SCC 414 : (2008) 1 SCC (Cri) 209 : (2007) 14 Scale 168] . This Court in that case was dealing with a matter where the vehicle in question was requisitioned by the State Government and while holding that the owner of the vehicle would not be liable it was opined: (SCC p. 417, para 10) "10. Parliament either under the 1939 Act or the 1988 Act did not take into consideration a situation of this nature. No doubt, Respondents 3 and 4 continued to be the registered owners of the vehicle despite the fact that the same was requisitioned by the District Magistrate in exercise of the power conferred upon him under the Representation of the People Act. A vehicle is requisitioned by a statutory authority, pursuant to the provisions contained in a statute. The owner of the vehicle cannot refuse to abide by the order of requisition of the vehicle by the Deputy Commissioner. While the vehicle remains under requisition, the owner does not exercise any control thereover. The driver may still be the employee of the owner of the vehicle but he has to drive it as per the direction of the officer of the State, who is put in charge thereof. Save and except for legal ownership, for all intent and purport, the registered owner of the vehicle loses entire control thereover. He has no say as to whether the vehicle should be driven at a given point of time or not. He cannot ask the driver not to drive a vehicle on a bad road. He or the driver could not possibly say that the vehicle would not be driven in the night. The purpose of requisition is to use the vehicle. For the period the vehicle remains under the control of the State and/or its officers, the owner is only entitled to payment of compensation therefor in terms of the Act but he cannot not (sic) exercise any control thereupon. In a situation of this nature, this Court must proceed on the presumption that Parliament while enacting the 1988 Act did not envisage such a situation. If in a given situation, the statutory definitions contained in the 1988 Act cannot be given effect to in letter and spirit, the same should be understood from the common sense point of view."

18. The legal principles as noticed hereinbefore, clearly show that the appellant was not liable to pay any compensation to the claimants.

19. For the aforementioned reasons, the impugned judgment cannot be sustained. It is set aside accordingly. The appeal is allowed. No costs.

9. Learned counsel for the appellant is impressing upon this Court, that actually the Tribal Welfare Commissioner, Ranchi, is the officer under the State Government and has acted as per the Government policy of the State of Jharkhand by providing a bus to the group of ten Tribal people, for their self- employment and for improvement of their economic condition in return of 10% of the actual price of the bus, which the group of ten tribals has to return and 90% has been provided as subsidy.

10. Learned counsel for the appellant has further submitted that appellant-

Tribal Welfare Commissioner, Ranchi, is an officer authorized under the State Government of Jharkhand to provide 90% financial subsidy to the group of 10 by entering into an agreement through his competent officer i.e. Project Officer, MESO Area, Ranchi, with the group of ten Tribals, which has been brought on record as Annexure-7 at page no.57.

11. The relevant agreement has been entered on 21.08.2002 at Ranchi between 1.Shiva Oraon, S/o Mangra Oraon, 2. Dinesh Oraon, S/o Late Sukra Oraon, 3. Sri Ramkishore Oraon, S/o Sri Mahadeo Oraon, 4. Krishna Ekka, S/o Sri Etwa Oraon, 5. Manoj Prakash Oraon, S/o Sri Birsa Oraon, 6. Pappu Oraon, S/o Sri Budhdeo Oraon, 7. Krishna Oraon, S/o Sukra Oraon, 8. Smt. Anita Devi, D/o Birsa Oraon, 9. Sunita Kumari, D/o Sri Bhangu Oraon and

10. Rita Gari, D/o Laxman Oraon, All R/o Village- Jidu, P.S. Pithoria, Block- Kanke District Ranchi, - being first party. They have entered into an agreement with the Project Officer, Meso Area, Ranchi as second party on 21.08.2002.

12. In the said agreement, it has been specifically mentioned at Clause-4, that 90% of the financial help is by way of subsidy under Government Scheme and 10% have to be returned by these group of 10 Tribals within a period of three months in ten installments along with interest @ 4% on the amount of Rs.67,785/- to be deposited to yksdy ,fj;k eYVhijil lkslkbZVh rFkk lgdkfjrk foHkkx ,oa fuca/ku lg;ksx lfefr;ksa dks Hkqxrku dh tk,xhA

13. Learned counsel for the appellant has thus submitted, that from perusal of the agreement the ownership lies in the hand of the 10 tribals, which are further apparent from Clauses- 4 and 8 of the agreement, which may profitably be quoted hereunder:-

"4- ;g fd mijksDr cl 90% vuqnku ij lewg dks fn;k tk jgk gS] ftldk lewg ds lkjs lnL; leku :i ls vf/kdkjh gksxsA izFke i{k dks dqy jkf'k 67,[email protected]& :i;k rhu ekg esa vf/kd ls vf/kd 10 fdLrks esa 4% C;kt ds nj ls yksdy ,fj;k eYVhijil lkslkbZVh rFkk lgdkjfjrk foHkkx ,oa fuca/ku lg;ksx lfefr;ksa dks Hkqxrku dh tk;sxhA fdLrksa ds Hkqxrku esa f'kfFkyrk cjrus ij jkf'k dh ekax olwyh vf/kfu;e ds izko/kkuksa ds rgr olwyuh; gksxhA 8- ;g fd cl dk chek djkuk VSDl tek djuk cS/k ijfeV ysdj pykuk rFkk j[k&j[kko vkfn U;k; laxr dk;Z izFke i{k ds lHkh lnL; }kjk djuk vko';d gksxkA "

14. Learned counsel for the appellant has thus submitted, that in view of the judgment passed by the Apex Court, the liability fastened upon the Tribal Welfare Commissioner, Ranchi, by the Motor Accident Claims Tribunal may be

set aside, as the same is liability upon the group of ten Tribal persons i.e. Shiva Oraon and nine others and one of the share, which has been wrongly considered by the learned Tribunal at Para-10 against the appellant- Tribal Welfare Commissioner may also be set aside.

15. Learned counsel for the appellant has further submitted that claim application filed by the claimants before the learned Tribunal is bad for non- joinder of necessary parties.

16. Learned counsel for the appellant has further submitted, that pursuant to the order passed by the Co-ordinate Bench of this Court, in terms of the order No.3, dated 08.03.2019, Tribal Welfare Commissioner, Ranchi has already deposited Rs.10 Lacs, which has been disbursed to the claimants out of the total compensation of Rs.19,80,554/- along with interest @ 9% per annum from the date of admission of the claim application i.e. 14.08.2015.

Respondent No.7 [Shiva Oraon] is represented by learned counsel, Ms. Rishi Bharti.

17. Ms. Rishi Bharti, learned counsel for the Respondent No.7 has fairly submitted, that before the learned Tribunal, the driver of the offending bus, namely, Ajay Kachhap and Shiva Oraon, Group Leader of ten members of schedule tribe have not appeared, therefore, the case has been proceeded for ex- parte hearing against them vide order dated 25.01.2017, as such, this Court may remand the matter.

18. Learned counsel for the Respondent No.7 has further submitted, that since notice was not served upon Shiva Oraon, as he got an employment in the Jharkhand Police in the year, 2005. Shiva Oraon has also communicated the same to the Tribal Welfare Commissioner, Ranchi and in view of Clause-11 of the Agreement, entered between Shiva Oraon and nine other Tribals on 21.08.2002 at Ranchi, with the Project Officer, MESO Area, Ranchi, shows that as soon as any member of the group gets any appointment and joining given in any job by any of the Ten Tribal persons of that group, the membership will cease automatically from the group.

19. To buttress her argument, learned counsel for the respondent no.7 has placed Clause-11 of the said Agreement, which may profitably be quoted hereunder :-

"11- ;g fd izFkei{k ds fdlh Hkh O;fDr dks vxj [email protected] ljdkjh ukSdjh fey tkrh gS rks mldh lnL;rk fu;qfDr esa ;ksxnku nsus dh frfFk ls Lo;a lekIr ekuh tk;sxh vkSj mlds LFkku ij fdlh vU; lq;ksX; O;fDr dks ftls f}rh;i{k mfpr le>s mik;qDr dh vuqefr ls lewg esa 'kkfey djus ds vf/kdkjh gksaxsA"

20. Learned counsel for the respondent no.7 has thus, submitted that pursuant to the appointment given to Shiva Oraon, on the Post of Constable in Jharkhand Police, and pursuant to his joining given in the service, he ceased automatically to remain member of the ten tribal group, as such, Shiva Oraon cannot be fastened with the liability.

21. This Court has asked specific question from counsel for the respondent No.7, that whether Shiva Oraon has also filed any analogous appeal against the same impugned award for discharging him with the liability passed by the learned Tribunal.

Ms. Rishi Bharti, learned counsel on the instruction of respondent No.7 (Shiva Oraon) has fairly submitted, that no appeal has been preferred by Shiva Oraon against the said impugned judgment, as Shiva Oraon was under impression that as soon as he joined service and intimation has been given to the concerned Tribal Welfare Commissioner, Ranchi, his membership ceases automatically. As such, he has not preferred any appeal.

22. Learned counsel for the Respondent No.7 has further submitted, that there is no agreement between Shiva Oraon and nine Tribal persons of the group as First party with Tribal Welfare Commissioner, Ranchi, appellant rather agreement has been entered into with a group of ten tribals including Shiva Oraon on 21.08.2002 with Project Officer, MESO Area, Ranchi.

23. Learned counsel for the Respondent No.7 in support of her submission has placed reliance upon the provisions of Section 146(2) of the M.V. Act, which may profitably be quoted hereunder :-

146........

(1).......

"(2) The provisions of sub-section (1) shall not apply to any vehicle owner by Central Government or a State Government and used for purposes not connected with any commercial enterprise."

24. As such, this vehicle being a Government vehicle was not insured which was handed-over to the Tribals by the Welfare Department either through Tribal Welfare Commissioner or through the Project Officer, MESO Area, Ranchi, as such, the group of Tribal persons including Shiva Oraon cannot be fastened with such liability.

25. Learned counsel for the Respondent No.7, Ms. Rishi Bharti has further stated that from perusal of the said agreement, particularly para 4, it would be apparent that 90% of the entire amount has been paid by the Welfare Department

as subsidy and only 10% to the tune of Rs.67,785/- is to be returned along with 4% interest, within three months in ten instalments before the local Area Multi- purpose Society and Co-operative and Registration Department, Government of Jharkhand, as such, the vehicle is a Government vehicle, which does not require any insurance coverage, as such, the learned Tribunal has wrongly considered the group of ten Tribal people including Shiva Oraon as the owner of the vehicle under Section 2 sub-Section 30 of the M.V. Act.

26. Learned counsel for the Respondent No.7, Ms. Rishi Bharti has further submitted that other nine Tribal persons of the group except Shiva Oraon have not been impleaded as party in the claim application, as such, the learned Tribunal has committed gross error in awarding the compensation without following the principles of natural justice rather it ought to have dismissed the claim application because of the non-joinder of the necessary party.

27. To buttress her argument, learned counsel, Ms. Rishi Bharti has drawn attention of this Court towards Clause-5 of the Agreement dated 21.08.2002 which may profitably be quoted hereunder :-

"5- ;g fd izFkei{k bl cl dks fdlh vU; O;fDr ;k lewg ds lkFk fcØh ;k vU; fdlh Hkh rjhds ls gLrkUrfjr ugha djsxk bls yht] eksjxst Hkh ugha dj ldsxkA ;g fd izFke i{k ds lnL;ksa esa ls fdlh Hkh O;fDr dks gVkuk ;k lfEefyr djus dk vf/kdkj mik;qDr jkWaph dks gksxk lewg ds fdlh Hkh lnL; dks lewg ds fdlh Hkh O;fDr }kjk gVk;k ;k tksM+k ugha tk ldsxkA"

28. Learned counsel for the Respondent No.7 has further submitted that in view of such Clause of the agreement dated 21.08.2002, entered into between group of ten Tribal persons including Shiva Oraon with the Project Officer, MESO Area, Ranchi, it is apparent that group of ten Tribals have no right to change the ownership of the vehicle meaning thereby only with regard to use of bus and return of amount of Rs.67,785/- with 4% interest to be paid within 3 months in maximum ten instalments was permissible to the Tribals, as such, the group of ten tribal people cannot be construed as owner, as such, liability cannot be fastened upon Shiva Oraon or any other nine Tribal people of the Group.

29. She has further placed reliance upon Paras 7, 11 and 13 of the said agreement, which may profitably be quoted hereunder :-

"7- ;g fd izFkei{k ds lHkh lnL; vkil esa feytqy dj lksgknZ iw.kZ okrkjoj.k esa dk;Zdjsaxs rFkk l`ftr vk; dk cjkcj&cjkcj fgLlsnkj gksasxs rFkk ikyh ds vk/kkj ij lHkh lnL; cl dk lapkyu dk dk;Z djsaxsA 11- ;g fd izFkei{k ds fdlh Hkh O;fDr dks vxj [email protected] ljdkjh ukSdjh fey tkrh gS

rks mldh lnL;rk fu;qfDr esa ;ksxnku nsus dh frfFk ls Lo;a lekIr ekuh tk;sxh vkSj mlds LFkku ij fdlh vU; lq;ksX; O;fDr dks ftls f}rh;i{k mfpr le>s mik;qDr dh vuqefr ls lewg esa 'kkfey djus ds vf/kdkjh gksaxsA 13- mijksDr lHkh 'krksZ esa ls ,d ;k vf/kd dk mYya?ku gksus ij f}rh; i{k }kjk cl dks tCr dj vius dCts esa ys fy;k tk;sxk rFkk izFke i{k dk cl ij fdlh izdkj dk vf/kdkj rRi'pkr~ Lor% lekIr le>k tk;sxkA"

30. Learned counsel for the Respondent No.7 has thus, submitted that as per Clauses of the agreement, Shiva Oraon has not to communicate even to Tribal Welfare Commissioner or any person of the State, after getting an employment in Government or non-governmental organization. The day, he will accept the service and join service, his membership will automatically cease to function. As Shiva Oraon, joined the Post of Constable on 13.05.2005 in the Jharkhand Police, from that very day, he ceased to be a member of the group.

31. She has further submitted, that the Tribal Welfare Commissioner has not come up with any evidence to establish that after 13.05.2005, Shiva Oraon has taken any profit out of the earning of the bus. She has further stated, that admittedly the accident took place on 25.05.2007, as such, from 2005 to 2007, Shiva Oraon was not in possession of the vehicle and Shiva Oraon cannot be considered to be member of the group of ten tribal people rather he ceased to be member and as there are laches on the part of the Project Officer, MESO Area, Ranchi, Shiva Oraon cannot be held liable for the same.

32. Learned counsel for the Respondent No.7 has further submitted, that when the said agreement was entered into between the ten Tribals people including Shiva Oraon on 21.08.2002 with Project Officer, MESO Area, Ranchi, it was incumbent upon that Project Officer, MESO Area, Ranchi to look into the functioning of the bus in view of Clause-13 which may profitably be quoted hereunder :-

"13- mijksDr lHkh 'krksZ esa ls ,d ;k vf/kd dk mYya?ku gksus ij f}rh; i{k }kjk cl dks tCr dj vius dCts esa ys fy;k tk;sxk rFkk izFke i{k dk cl ij fdlh izdkj dk vf/kdkj rRi'pkr~ Lor% lekIr le>k tk;sxkA"

33. She has further submitted that, if the bus was not insured under the M.V. Act, then it was incumbent upon the Project Officer, Ranchi to seize such bus. The State cannot take a plea, that Tribal people who are beneficiary of such social welfare policy of the Government are owner of the bus in view of the different Clauses of the said agreement dated 21.08.2002. If the bus as well as ownership was given to the Tribal people, under the scheme for the welfare of the tribal people, it was incumbent upon the State Authority to disclose that the ownership lies with the ten Tribal people and for that they have to insure the vehicle, they

have to obtain the route permit and other things for plying the vehicle. The State never checked the same nor repossessed the bus on allegation of violation of Clause 13 of the agreement dated 21.08.2002. This Court may consider the pathetic situation in which the Tribal people have been pushed in litigation. She has submitted that when this scheme was floated by the Government of Jharkhand, Department of Welfare, for welfare of the Tribal people, for upliftment of earning, it was incumbent upon the Government to have a supervisory role so that these Tribal people, who have no knowledge or expertise should not violate any of the terms and conditions and may not fall in any litigation or complication.

34. Learned counsel for the Respondent No.7 has further submitted that, if the Government has asked to return 10% of the value of the bus i.e. Rs.67,785/- along with 4% interest, it was incumbent upon the Government to add the amount of insurance premium, so that vehicle could have been insured and these ten Tribal people in number could have been protected from prosecution, in case vehicle met with an accident.

35. Under the aforesaid circumstances, Ms. Rishi Bharti, learned counsel has submitted that, these innocent Tribal people cannot be fastened with the liability as entire agreement has been drafted by the Welfare Department, on which these Tribal persons have to sign as First Party, as such, whatever Award has been passed that must be satisfied by the Government of Jharkhand and not by any tribal person including Shiva Oraon, who is no more a member of Tribal Group after the year 2005 after joining service, as the accident took place on 25.05.2007.

36. She has further stated that right to recovery given in favour of Tribal Welfare Commissioner, by the learned Tribunal is a wrong appreciation of the fact, as such, the same may be set aside.

37. She has further submitted, that this agreement is a private agreement between ten Tribal persons including Shiva Oraon and Project Officer, MESO Area, Ranchi, as such, the same cannot be fastened upon the ten Tribal persons in such manner by the State of Jharkhand, though she has not referred any judgment in support of her contention.

38. Mr. Rajesh Lala, learned counsel for the appellant-Tribal Welfare Commissioner has submitted, that said agreement has not been denied by Shiva Oraon or any of the nine Tribal persons.

39. Mr. Rajesh Lala, learned counsel for the appellant-Tribal Welfare

Commissioner has further submitted that in the agreement, it has been admitted by ten Tribal persons including Shiva Oraon, that they have received bus of Tata Model, Sitting capacity- 33+1, Chasis No.386221FXZ 715003 and Engine No.4977C85FXZ 879365, as such, they are admitting that they are in possession of the bus.

40. Mr. Rajesh Lala, learned counsel for the appellant-Tribal Welfare Commissioner has submitted, that even after notice, Shiva Oraon or any of the Tribal person or driver of the offending bus have not appeared before the learned Tribunal and proceeding was fixed as ex-parte. Now in the appellate jurisdiction even without filing of any document, Shiva Oraon is taking a plea that he got appointment on the Post of Constable in Jharkhand Police on 13.05.2005. This fact has not been communicated to the appellant- Tribal Welfare Commissioner or Project Officer, MESO Area, Ranchi, as such, this plea is an after-thought as Shiva Oraon has taken benefits of an appointment to the Post of Constable by receiving salary as well as income from bus before accident i.e. till 25.05.2007.

41. Mr. Rajesh Lala, learned counsel for the appellant-Tribal Welfare Commissioner has further submitted that as per Clause-10 of the said Agreement dated 21.08.2002, the entire ownership right has been given to the group of ten Tribals.

Clause -10 of the agreement may profitably be quoted hereunder :-

''10- ;g fd cl dks pkyq voLFkk esa j[kuk izFke i{k ds lHkh lnL;ksa dk lkewfgd mRrjnkf;Ro gksxkA fdlh izdkj dh ejEefr esa ykijokgh ugha cjrh tk;sxhA ;fn bldh lwpuk f}rh;i{k dks feyrh gS fd cl ejEefr ds fcuk ;k j[k&j[kko ds vHkko esa dkj.k pkyw voLFkk esa ugha gS rks f}rh; i{k }kjk izFke i{k dk cl dk ekfydkuk gd lekIr djus dh dkjZokbZ dh tk ldrh gSA" [emphasis supplied]

42. Meaning thereby that pursuant to Clause-10 of the agreement, it is admitted position, that First Party is the owner of the vehicle, as such, this plea is not available to the respondent No.7, who has not appeared before the learned Tribunal nor contested the case to agitate all these issues. The issues which have not been agitated before the learned Tribunal cannot be allowed to raise before the appellate court, in view of the judgment passed by the Apex Court in the case of Ramchandra Vs. Regional Manager United India Insurance Co. Ltd., reported in 2013 (12) SCC 84 , as such, the liability may be shifted upon the group of ten tribal persons exonerating Tribal Welfare Commissioner from the liability fastened by the learned Tribunal, as the vehicle was in possession of group of ten people at the time of accident, which is

also apparent from the charge-sheet submitted against the driver of the offending vehicle, Ajay Kachhap, S/o Narayan Kahhap @ Kachhap, R/o Vill.- Kumeharia, P.S. Pithoria, District- Ranchi bearing Registration Number JH01C-8080. The driver was employed by the group of ten tribal persons and the same has not been denied by Shiva Oraon or group of ten tribals, as such, in view of the judgment referred above, this Court may consider, that Tribal Welfare Commissioner, Ranchi, cannot be fastened with the liability.

43. Heard, learned counsel for the parties, perused the memo of appeal impugned Award and judgment relied in this appeal by the appellant.

It appears that FIR has been lodged on 26.05.2007 vide Ratu (Nagari) P.S. Case No.127 of 2007, for the offence under Sections 279 and 304A IPC against the driver of bus provided by the Welfare Department. It is admitted position that on 25.05.2007 at 08:30 P.M. one Pati Ram Munda, an employee of CCL, met with an accident and he died at the spot.

44. Police after investigation submitted chargesheet vide chargesheet No.57 of 2008 dated 31.03.2008 under Sections 279 and 304A IPC against Ajay Kachhap, driver of the bus. From perusal of registration certificate of the vehicle, which is at page no.55 of this Memo of Appeal, form no.24, it appears that registration no. is JH01C-8080 date of registration is 01.10.2002, name of owners are Tribal Welfare Commissioner, Group Leaders, Shiva Oraon and nine others. The date of purchase is 01.10.2002 and it was not hypothecated. The Chasis No. is 386221FXZ 715003 and Engine No.497TC85FXZ 879365, sitting capacity is 33 and this certificate of registration is valid up to 30.09.2007.

It appears that an agreement was executed between the Shiva Oraon and other nine Tribals as first party with authorized person of second party i.e. Welfare Department, Government of Jharkhand, Ranchi, through Project Officer, MESO Area, Ranchi as such, the agreement is admitted between the parties.

45. Section 2 sub-Section 30 of the M.V. Act which defines the ownership is profitably quoted hereunder :-

"30. "Owner" means a person in whose name a motor vehicle stands registered, and where such person is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire-purchase, agreement, or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that agreement."

(emphasis supplied)

46. It appears from the judgment relied upon by the learned counsel for the

appellant i.e. Rajasthan State Road Transport Corporation vs. Kailash Nath Kothari & Ors., reported in 1997 (7) SCC 481 which has been followed in the case of Deepa Devi (Supra) as well Godavari Finance Co. (Supra) and the same has been reiterated in the case of Surendra Kumar Bhilawae vs. New India Assurance Company Limited, reported in 2020 SCC OnLine SC 523 at Para-54 and in view of definition of owner in Section 2 sub-Section 30 M.V. Act, it appears that in the column of registered owner, though the name of Tribal Commissioner with group leader, Shiva Oraon and nine others have been mentioned, but in view of Section 2 sub-Section 30 M.V. Act, the person in possession of the vehicle under that agreement is the owner of the vehicle. As such, this Court is of the opinion that in view of the agreement between the Project Officer, MESO Area, Ranchi and Group of ten tribal people and in view of Section 2 of sub-Section 30 of the M.V. Act as well as in view of the judgment passed by the Apex Court, in the case of Kailash Nath Kothari (Supra) at Para-

17, the group of ten tribal persons including Shiva Oraon are the joint owner of the vehicle. As such, the right of recovery has been rightly granted in favour of the Tribal Welfare Commissioner, but after satisfying the Award to the claimants. As such, Tribal Welfare Commissioner is exonerated from 1/11 th liability as held by the learned Tribunal.

The issue with regard to non-joinder and mis-joinder of parties is concerned, as Shiva Oraon has been made party in representative capacity. The notice was served and Shiva Oraon has not appeared nor the driver has appeared. Nothing has been brought on record to substantiate the plea by Shiva Oraon regarding service of notice. This Court is not inclined to remit the matter to the learned Tribunal in a benevolent legislation. Nor claimants can be allowed to suffer in such situation.

47. The entire liability is shifted upon the group of ten Tribal persons and the Tribal Welfare Commissioner has right to recover the same after satisfying the Award to the claimants, who are sufferer of such accident in which bread-earner Pati Ram Munda died on 25.05.2007.

48. In a benevolent legislation, since the bus has been given by the Welfare Department to the group of ten tribal persons, the claimants cannot be allowed to suffer in a benevolent legislation.

49. Out of total compensation of Rs.19,80,544/- along with interest @ 9% per

annum from the date of admission of claim application under Section 166 of M.V. Act i.e. 14.08.2015 till its realization, Rs.10 lacs which has already been deposited in compliance of the order dated 08.03.2014 passed by co-ordinate Bench of this Court, as such, the balance amount of Award shall be satisfied along with the interest by the Tribal Welfare Commissioner, Ranchi within a reasonable time as the accident is of dated 25.05.2007. After satisfying the Award, appellant- Tribal Welfare Commissioner, Ranchi shall recover the same from the group of ten tribal persons, who have entered into the agreement on 21.08.2002.

50. Under the aforesaid circumstances, the instant Misc. Appeal is partly allowed with aforesaid directions exonerating the Tribal Welfare Commissioner, Ranchi from liability of 1/11th share.

51. So far the liability of Tribal Welfare Commissioner is concerned, the entire amount is to be paid by group of ten Tribal persons. Tribal Welfare Commissioner is at liberty to recover the same as the Tribal Welfare Commissioner has to satisfy the Award.

52. The statutory amount deposited at the time of preferring the appeal by the appellant-Tribal Welfare Commissioner, Ranchi shall be remitted to the learned Tribunal by learned Registrar General of this Court within four weeks from today so as to pay the same to the claimants after due notice and verification and balance amount shall be paid within a reasonable time as the accident is of dated 25.05.2007.

(Kailash Prasad Deo, J.) Sandeep/R.S.