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1. The'order in this appeal shall also dispose of Miscellaneous Appeal No. 49 of 1981 (The Oriental Fire & General Insurance Company Limited, New Delhi, v. Smt. Masroor Anwar and Ors.) and the cross-objection filed in Miscellaneous Appeal No. 49 of 1981.

2. One Anwar Hussain was employed as technician in Bhilai Steel Plant. On 31-5-1976 at 11.00 A.M., he was proceeding on a bicycle towards Central Laboratory within the precinct of the plant. At the same time, Dumper No. 5 driven by Shri Rajendran and owned by Bhilai Construction Company of which Vinay Engineering Company appears to be a unit, was proceeding in the same direction. The two dashed knocking down the cyclist, viz., Anwar Hussain, who was immediately removed to the plant hospital where he was treated for his injuries for quite sometime before he succumbed to those injuries on 21-7-1976 in the hospital itself. The parents of the deceased then moved the Commissioner, Workmen's Compensation for award of compensation resulting from the death of "worker" Anwar Hussain and mentioned in the petition that Anwar Hussain has left his widow and children. The employer paid Rs. 10,000/- as ex-gratia payment to the widow of the deceased. Some amount was also deposited with the Commissioner, Workmen's Compensation. The Commissioner issued notices to the claimants. The claimants, however, did not appear before the authority and, therefore, the matter before the authority rested at that. At the same time, the widow and daughters of Anwar Hussain with whom joined Anwar Hussain's father Ibrahim Hussain and mother Smt. Aziza Begum, filed a claim before Motor Accidents Claims Tribunal- for payment of compensation arising out of death of Anwar Hussain. His father Ibrahim Hussain has since expired. The claimants alleged that the dumper was being driven rashly and negligently by Rajendran and dashed against the cycle causing fatal injuries to Anwar Hussain. The driver as also the owner were, therefore said to be liable to pay compensation to the dependents of the deceased Anwar Hussain. It was alleged that at the time of death, Anwar Hussain was 29 years of age and would have lived long. He would have risen to the post of Foreman before he could retire on attaining the age of 58 years. In view of his salary and the possibility of rise in the salary during his service career, a sum of Rs. 4,08,440/- was claimed under different heads. Since the dumper was insured with the Oriental Fire & General Insurance Company (appellant in Miscellaneous Appeal No. 49 of 1981), the Insurance Company was also made liable for compensation.

3. Separate set of written statements were filed. The stand on behalf of the driver and the owner of the dumper had been that it is the deceased who emerged from a side road on the cycle driving it negligently and unmindful of the dumper. The dumper was moving on the street at a very moderate speed and the cyclist, viz., Anwar Hussain, dashed against the dumper. Negligence of the Rajendran in driving dumper was completely denied and instead the boot is said to be on the other leg. Alternatively, the plea of contributory negligence has also been raised. Dumper is said to be not a goods vehicle and, therefore, is alleged to be out of the purview of the Motor Vehicles Act. Yet another plea raised is that since the claimants have chosen to prefer a claim before the Commissioner, Workmen's Compensation, under the Workmen's Compensation Act, their claim before the Accidents Claims Tribunal under Section 110-A is not maintainable. The amount of compensation claimed is said to be highly excessive. It is said that the amount of Rs. 10,000 /- obtained by the claimants as ex gratia payment from deceased Anwar Hussain's employer should be set off against the amount that may be assessed as compensation by the Claims Tribunal. The Insurance Company is said to be jointly liable to all the amount of compensation which the Tribunal may adjudge as payable by the driver and the owner of the vehicle.

8. We now proceed to examine whether both, i.e., the driver of the dumper and the cyclist, viz., the deceased Anwar Hussain, or which of the two was negligent in driving the respective vehicles. It may be remembered that while the claimants attribute negligence and rash driving of the dumper to its driver Rajendran, the owners of the dumper accuse the cyslist, i.e., the deceased Anwar Hussain as negligent. While considering such a problem, the versions of person causing the injury and the person sustaining the injury, if available, assume importance. It is these respective versions which may need further corroboration and the extent and nature of such corroboration may depend upon circumstances of each case. It is only when such version is not available because of death or any other circumstances, that circumstantial evidence and subsequent conduct assume some importance. Suppression of these versions must be seriously taken and all adverse inference must be drawn against the party guilty of such suppression. In the instant case, it immediately draws one's attention that Shri Rajendran, driver of the dumper, who was even made a party to the claim petition, and in the employment of the owners of the dumper, has no, been examined. No reason has been assigned for his non-examination as a witness. It is he who could well have testified the plea raised in defence to the action that the deceased drove the cycle negligently and dashed it against the dumper. Whether or not the dumper was driven cautiously and all attempts were taken to avert such accident could have been deposed to only by Shri Rajendran, the driver himself. Withholding of such evidence permits one to draw all adverse inferences against the driver on this issue. At the same time, we have on record through the evidence of the claimants Smt. Masroor Anwar, the widow of the deceased, that when the deceased after three days of the incident regained consciousness, he told her that while he (the deceased) was proceeding to the Laboratory on his bycycle, the dumper came from behind and dashed against his cycle. Needless to say that in the hands of the adversary is the weapon of cross-examination to test the truthfulness of the statement made by a witness in examination-in-chief. If a witness, therefore, is not cross-examined on any material point deposed to by him in examination-in-chief, the necessary inference is that the adversary does not mean to challenge that version given by the witness in examination-in-chief. In that event, the version so given by the witness in examination-in-chief must be accepted as truthful. This is what has exactly taken place in the present case. The statement of Masroor Anwar, referred to above, has not been challenged in the cross-examination. That version, therefore, has to be taken as correct. Besides, the claimants have examined Shri I. R. Siddiqi (A.W.2) who in his deposition has given an eye-witness account of the incident. The Claims Tribunal has not placed much reliance upon testimony of this witness, Siddiqi, because of a few contradictions appearing in his testimony. At the same time, the owners of the vehicle have also examined one Shrikumaras D.W.1. This witness also claims to be an eye-witness of the incident. Apart from being the employee of the owners of the dumper, this witness appears to be a got up witness. His deposition does not inspire confidence. It is significant that this witness has admitted that in the criminal court Rajendran admitted his guilt and he was fined. He has not even deposed to about the non availability of Rajendran. One fails to see why the owners have introduced their other employee instead of examining Rajendran himself. This renders it difficult to accept his testimony. Be that as it may, the unchallenged testimony of Masroor Anwar (A. W. 1), the widow of the deceased, as referred to above, coupled with the non-examination of Rajendran, the driver of the dumper, renders testimony of Siddiqi and Shrikumar entirely insignificant and lend all support to the finding of the Claims Tribunal that it was Rejendran who was driving the dumper rashly and negligently. In the light of the evidence that we have discussed above, no much weight can be attached to a few circumstances which Shri Rajendra Tiwari, learned counsel for appellants in Miscellaneous Appeal No. 15 of 1981 by owners of the dumper, pressed in support of his contention that it is the deceased who had been negligent or at least was guilty of contributory negligence. We, therefore, uphold the finding of the Claims Tribunal that the accident resulting in death of Anwar Hussain was caused due to rash and negligent driving of the dumper by Rajendran who at the relevant time was the employee of the appellants in Miscellaneous Appeal No. 15 of 1981 (the owners of the dumper).

11. The last question which now remains to be decided in these appeals is the liability of the insurance company, appellant in Miscellaneous Appeal No. 49 of 1981, and the extent of the liability. It cannot be denied that the dumper is a motor vehicle. An attempt was, however, made to bring the dumper within the exception embodied in Section 2( 18) of the Motor Vehicles Act which defines "motor vehicle" to mean "any machanically propelled vehicle adapted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source and includes a basis to which a body has not been attached and a trailer, but docs not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises. "The use of the word "only" is significant. May be that a particular vehicle is being used only in the factory or in any other enclosed premises. It may even be that it is adapted for use only in a factory. However, if it is capable of being used as a motor vehicle outside the factory premises, the vehicle has to be held as "motor vehicle" within the meaning of Section 2(18) of the Act. A Division Bench of the Mysore High Court in Dalmia Cements Ltd. v. R.T.O., Bellary, AIR 1970 Mys49, actually considered the case of 'Diesal Mogurt Dumpers' and held that since the dumpers could be used for carrying loads even outside the Mining area or any other enclosed premises, like any other 'goods vehicle', have to be held as 'motor vehicle' irrespective of the actual use to which they were being put. It was observed that the mere circumstances that it was not a convenient or advantageous as any other public carrier or goods vehicle, commonly used for a similar purpose outside a factory or any enclosed premises, was not sufficient to bring the vehicle within the scope of exemption. Importance was laid on the capability for use. The decision in State of Mysore v. Syed Ibrahim, AIR 1967 SC 1424, was followed. Later, the Supreme Court in Bolani Ores v. State of Orissa, AIR 1975 SC 17, pointed out that in order to be taken out-of the definition of 'motor vehicle' contained in Section 2( 18) of the Act, the vehicle should be shown to be a special type adapted for use only in a factory or in any enclosed premises. It was observed that so far as Motor Vehicles Act is concerned, the dumpers and rockers are motor vehicles which cannot be taken out of that category. We have, therefore, no hesitation in holding that the dumper is a motor vehicle within the meaning of Section 2( 18) of the Act. It cannot be denied that the dumper was adapted for use for carriage of goods. The ordinary function of the dumper is not only to extract and collect but also to carry goods. That being so, in our opinion dumper is a 'goods vehicle' as defined in Section 2(18) of the Act.