- (1.) AGGRIEVED by the award dated 21.04.2003 passed by the Motor Accident Claims Tribunal, Kotputli, District Jaipur (hereinafter referred to as "the learned Tribunal"), whereby the learned Tribunal has granted a compensation of Rs.7,00,000/- to the claimants-respondent Nos. 1 to 5 for the loss caused to them due to the death of Shimbhu, the appellant insurance company has approached this Court.
(2.) SHORTLY the facts of the case are that on 03.03.1999, Shimbhu was traveling in a jeep, which was coming to Kotputli. However, when the jeep reached near Roheda, a truck, bearing registration No.HR-47-2414, driven with rashly and negligently collided with the jeep. Consequently, the jeep turned turtle. While, the jeep turned over, another truck, bearing Registration No.RJ-32-G-0478, dashed against the jeep. Due to this twin collition, all the persons of the jeep sustained injuries. Subsequently, on 12.08.1999, Shimbhu died. Since the claimants-respondents had lost the sole bread earner, they filed a claim petition before the learned Tribunal. The appellant-Insurance Company filed its written statements denying the averments made in the claim petition. In order to prove its case, the claimants examined five witnesses, and submitted seventy-two documents. In order to buttress its case, on the other hand, the Insurance Company examined two witnesses, and submitted a few documents. After going through the oral and documentary evidence, the learned Tribunal granted the compensation as aforementioned. Hence, this appeal before this Court. Mr. Tripurari Sharma, the learned counsel for the appellant, has strenuously contended that between the date of accident and the date of death, there is a difference of five months. According to him, there is nothing to show that the death was caused by the accident. The claimants have not produced the post-mortem report to substantiate their contention that Shimbhu had died due to the injuries sustained by him in the alleged accident. Moreover, according to the injury report, and according to Dr. Birbal Yadav (NAW-1) and Dr. Subhash Agarwal (NAW-2), the injuries sustained by Shimbhu were simple in nature. Therefore, it could not be the cause of his death, that too after a period of five months. According to the learned counsel, the burden of proving that the death was caused due to the injuries sustained in the accident, the burden was on the claimants. Yet, the claimants did not discharge the burden satisfactorily. Hence, the learned Tribunal has erred in granting the compensation. Secondly, initially Shimbhu had submitted a claim petition on the ground of injuries sustained by him in the accident. During the pendnecy of the said claim petition, Shimbhu had expired. Therefore, the claimants-respondents had moved an application for taking them on the record as his legal representatives, and for permitting them to amend the claim petition. Vide order dated 04.05.2001, the said application was dismissed by the learned Tribunal. The said order was never challenged. Hence, the said order achieved finality. Therefore, the subsequent claim petition filed by the claimants-respondents is hit by the doctrine of estoppel. On the other hand, Mr. M.K. Goyal, the learned counsel for respondent Nos. 1 to 5, has contended that according to the testimony of Dr. Ashvin Goyal (A.W.5) and according to the testimony of Dr. Subhash Agarwal (N.A.W.2), minor fractures were suffered by Shimbhu in the fifth, sixth and seventh vertebra and the same could not be detected in the X-ray. However, subsequently in the M.R.I., the said fractures have been detected. This is obvious from Exhibit-60 and Exhibit-15. According to both these doctors, minor fractures can cause the death of the injured even after months. Therefore, the claimants had probablized the fact that Shimbhu had died due to the injuries sustained by him in the accident. Secondly, while dismissing the application filed by the claimants-respondents for taking them as legal representatives of Shimbhu on record, vide order dated 04.05.2001, the learned Tribunal had directed them to file a separate claim petition. It is only upon the directions issued by the learned Tribunal that the claim petition was filed. Therefore, doctrine of estoppel cannot be read against the claimants-respondents. Heard the learned counsel for the parties, perused the record of the case and examined the impugned award.
(3.) A claim petition filed before the learned Tribunal is a civil case. Therefore, before adjudicating upon the evidence, one has to realize a civil case is proved on the basis of probabilities. It is not necessary, and in fact it is never warranted by law, that a civil case has to be proved beyond a reasonable doubt. Hence, this court has to see whether the claimants were able to probablize their case that the deceased had died due to the injuries sustained by him in the accident or not? Although it is true that he had never dealt with Shimbhu as an injured person, Dr. Ashvin Goyal (A.W.5) was examined as an expert. As an expert he had clearly opined that looking to the record of the S.M.S. Hospital and looking to the M.R.I. report, they had clearly showed that vertebra five, six and seven had a hair line fracture. Therefore, his testimony, relying on the opinion expertise in Modi's Medical Jurisprudence, that a person who has suffered minor fracture of vertebra may die after few months. He further states that according to the record, ever since Shimbhu had sustained injuries, he was not in a position to move and had developed bed sores. Thus, relying on a Medical Jurist and using his expertise as a medical jurist and as a surgeon, Dr. Ashvin Goyal had expressed his opinion. Dr. Subhash Agarwal (N.A.W.2), in his cross-examination, clearly admits that according to Exhibit-60 there is a fracture of sixth vertebra. Exhibit-15 also shows the fracture of sixth vertebra. In his re-examination, he also admits that a person is likely to die due to the said fracture after few months and it is not necessary that such a fracture would lead to immediate death. ;