JUDGMENT
V.D. Gyani, J.
1. This order shall also dispose of Misc. Appeal No. 103 of 1984, preferred by Bhagirath and Mahendra against the same award.
2. This appeal is directed against the award dated 13-12-1983, passed by the Member, Motor Accident Claims Tribunal, West Nimar, Mandleshwar, in Claim Case No. 54 of 1982.
3. The respondent-petitioner No. 1s claim was that on 25-3-1982, he was employed as a labourer by the owner of the Metador-van bearing registration No. CPO-7749. While being carried to Rajpur from Rangaon, the vehicle met with an accident near village Salakheda, as a result of rash and negligent driving by respondent No. 3. The petitioner-respondent No. 1 suffered injuries, so much so his right leg-tibia fibula got fractured, his 9th rib was fractured and mendible also got fractured and he had to remain in the Government Hospital Barwani. As a result of the injuries he became disabled and could not earn his livelihood as a labourer. His claim was that he used to earn Rs. 10/- per day. He claimed Rs. 52,000/- as compensation on various counts. The Tribunal awarded Rs. 35,000/- in total as compensation. Aggrieved by this award the Insurance Company has preferred the present appeal and the owner has preferred Misc. Appeal No. 103 of 1984. As both these appeals arise out of the same award, they have been heard and decided by a common order.
4. So far as the appellant Insurance Company is concerned, the liability to pay the compensation was denied on the following grounds : (i) that the driver of the Metador-van in question had no valid driving licence : (ii) that the injured petitioner-respondent No. 1 was travelling in the said van as a passenger in violation of the rules farmed under the Motor Vehicles Act, against the terms and conditions of the Insurance policy and (iii) that the owner did not inform the insurance company about the accident and as such, the Company was not liable.
5. It may be noted that the appellant Insurance Company did not adduce any evidence before the Tribunal except for examining one Sub-Inspector for proving the first-information-report, Ex. D/2. The other respondents Nos. 2, 3 and 4 the owner and driver of the vehicle, have neither examined themselves as witnesses nor produced any evidence in support of their respective case. The petitioner examined himself as also the doctor, who had examined and treated him and another labourer Harisingh. The Tribunal on the basis of this evidence made a total award of Rs. 35,090/- in favour of the claimant-respondent No. 1, out of which the liability of the present appellant has been fixed at Rs. 20,160.00 holding it liable for the injuries, for which the petitioner-claimant could have obtained compensation under the provisions of the Workmen’s Compensation Act.
6. The first question, which arises for consideration in view of the submission made by the learned Counsel for the appellant is whether the claimant-respondent No. 1 was a passenger in the Metador-van. It has come in the evidence of Harisingh (PW 1) that he was employed by the owner as a labourer on the Metador-van for loading and carrying the manure. He has also stated that prior to the incident they had already done two trips. On the basis of a stray sentence made from the statement of the claimant-Arjun-singh, it was sought to be suggested that after taking his meals he was standing at the bus stand and thereafter he boarded the van. The trial Court has made a note that the claimant being a disabled old villager, such strary statements made are of no consequence and even otherwise if his statement read as a whole clearly established the fact that he was employed as a labourer by the owner of the vehicle for loading and carrying the manure. The witness, however, repelled the suggestion made by the learned Counsel for the appellant Insurance Company that be had asked the driver of the Metador-van to take him to Rajpur. The witness stated that he was employed as a labourer thereon. He has further stated that Harisingh and the other labourer Narsingh had also boarded the van from that place. Learned Member of the Tribunal has rightly appreciated the evidence. It is only the appellant Insurance Company which has denied the fact that the claimant-respondent No. 1 was a labourer, while the owner and driver both have admitted this fact. Learned Counsel referred to Ex. D/2, the FIR lodged by the Sab-Inspector at Police Station Rajpur. This report mentions the claimant-respondent No. 1 as a passenger and the witness in his statement before the Court stated that he was so described as passenger on the information given by the claimant. This statement cannot be accepted as the witness has failed to produce the case diary statement of the claimant Arjunsingh, which the Sub-Inspector claimed to have recorded during investigation. This witness has clearly admitted that it was only after completing the inquiry that he registered an offence against the driver Mahendrasingh under Sections 379 and 338, IPC, vide Ex. D/2. It was, therefore, necessary that the statement as recorded by him should have been produced before the Court, Even otherwise Ex. D/2 cannot be treated as a substantive piece of evidence and the evidence of DW 1 cannot be accepted for proving the fact that the claimant-respondent No. 1 was a passenger in the Metador-van The trial Court has very rightly concluded that it was a guess work on the part of the Sub-Inspector to say that the claimant was a passenger in the van. Thus, the submission made by the learned Counsel for the appellant cannot be accepted.
7. Perusal of the impugned award goes to show that the question whether the driver was having a valid driving licence, does not appear to have been raised before the Tribunal, although in the written-statement such an objection was taken and pressed before the Tribunal. There is no mention about it in the impugned. Thus, it appears to have been abandoned after filing of the written-statement. It has come in the evidence of DW 1, examined by the appellant Insurance Company, who has produced the driving licence, Ex. D/3, which was valid from 28-4-1981 up to 27-4-1984, and the learned Counsel has failed to point out any infirmity therein so as to render it invalid. Thus, there is no substance in this objection also.
8. So far as the question whether the owner had informed the Insurance Company about the accident, except for the bald statement in the written-statement, there is absolutely no evidence on the point. It was incumbent on the appellant Insurance Company to have examined some witness to prove this fact. On the other hand, evidence of DW 1 goes to show that it was seized by him during the course of inquiry on the date of the accident itself. Thus, this submission also is devoid of any force.
9. In view of the findings as regards the claimant-respondent No. 1 not being a passenger, but an employee of the owner of the vehicle, employed for loading and carrying the manure, it is futile to contend that any of the terms of the Insurance Policy Ex. D/1 had been breached by the insured owner. Similarly in absence of any evidence adduced by the appellant on the point of want of valid driving licence possessed by the driver respondent No. 3 an adverse inference should be drawn for non-production of evidence against the appellant The Tribunal correctly concluded on the basis of Ex. D/3 (the driving licence produced by respondent No. 3) that the respondent No. 3 was possessed of a valid driving licence at the material time. Thus, the appellant has failed to make out any of the grounds under Section 96(2) of the Motor Vehicles Act.
10. The last point raised by the learned Counsels (in both these appeals) is about the compensation of Rs. 20,160/- awarded on account of injury to the claimant’s left hand. The tribunal has assessed this disability in accordance with Item No. 4 of Schedule II of the Workmen’s Compensation Act. The point raised by the learned Counsel is not pertaining to the mode of assessment for any error in assessment of disability or in application of Item No. 4 of Schedule II of the Workmens’ Compensation Act. What they contend is that the injury itself is not established. Referring to the claim petition it was submitted that there is no pleading to the effect that the claimant suffered any injury to his left hand and secondly, it was submitted that the Radiologist, PW 1 has also not referred to any such injury in his report, Ex. P/1, dated 22-4-1982.
11. It has come in the evidence of Harisingh (PW 3) that while other employees managed to jump out of the Van, the claimant Arjunsingh could not and he was found lying crushed under the vehicle when it turned turtle. He was rushed to the hospital at Rajpur and from there to Barwani. Arjunsingh (PW 2) has categorically stated in his examination-in-chief about all the injuries, including the one suffered on the left hand–‘MERA BANYA HATH TABHI SE JHULNE LAGA HAI”. This is what he said. Though cross-examined at length by the appellant’s counsel, there is not a single question put to him about the injuries, either in general or in particular about this injury to the left hand. But surprisingly enough it is now argued that the possibility of claimant having such a disability of the left hand prior to the accident cannot be ruled out. In absence of even a bald suggestion thrown to the claimant while he was still in the witness box, such an argument has no basis. Dr. Sinha (PW 1) has in his evidence stated that the claimant had lost control of movement of left hand (hanging below the wrist), attributable to damage done to nervous system. When asked about the period of such a condition, he of course, could not ascertain any definite period, but that by itself would not detract or destroy other evidence. Dr. Sinha is neither a Neuro-Surgeon nor an Orthopaedic-Surgeon. He is merely a Radiologist, who gave his X-ray report about Arjunsingh, the claimant on 22-4-1982 (vide X-ray report, Ex. D/1), almost after a month of the accident and that too about the fractures. In such circumstances, if the injury to the left hand is not mentioned in Ex. P/1, it would not necessarily mean that such an injury was not suffered by the claimant.
12. Coming now to the question of pleadings, suffice it to say that when parties were quite aware of the case they were required to meet, and in fact have cross-examined witnesses on the point, mere lack of pleading would notresult in defeating the claim on this account. Pleadings have to be liverally construed. The Supreme Court has in Madan Gopal v. Mamraj observed that:
Pleadings are losely drafted in the Courts, and the Courts should not scrutinise the pleadings with such meticulous care so as to result in genuine claims being defeated on trivial grounds.
The fact that the claimant is an illiterate old tribal a Bhilala, cannot be overlooked.
13. Considering the evidence on record, the learned Counsels have not been able to make out any justifiable ground for interference with the assessment made by the Tribunal, which is quite just and fair in view of the evidence available on the record.
14. For the foregoing reasons these appeals fail and are accordingly dismissed with costs. Counsel’s fee as per the schedule, if certified.