S.C. Mohapatra, J.
1. Claimant is appellant in this appeal under Section 173 of the Motor Vehicles Act, 1988.
2. Case of the claimant is that her son named N. Ramaro was going on his left side of the road in village Gosani on 2.8.1988 at about 5.00 p.m. At that time a bus bearing registration No. OAC 1611 belonging to respondent No. 1 which is popularly known as Nilachal Express bus plying from Gudari to Berhampur, dashed against the deceased at Gosani Chhaka on the road of village Gosani to Parla Khemandi. The deceased sustained multiple injuries and died on the spot. In the claim application it has been disclosed that the deceased left behind his widow, M. Sarojini and daughter, M. Lalita Kumari.
3. Owner of the bus filed a written statement denying the accident, the claim and his liability. He disclosed that the vehicle had been insured with the insurer (respondent No. 2) which was valid till 30.8.1988. Insurer filed its written statement denying its liability and also claiming strict proof in favour of the claim.
4. Daughter and widow of the deceased filed another claim petition which was registered as M.A.C. No. 87 of 1990 (38 of 1989). Both the claim petitions were heard together. On behalf of the claimants, five witnesses were examined. F.I.R., seizure list and the post-mortem report were produced and marked Exhs. 1 to 4. Insurance policy was produced and marked Exh. A. Considering the materials on record, Tribunal has held that the claimant has not been able to prove the rashness and negligence in this case.
5. It is submitted by Mr. Nayak, learned Counsel for the appellant, that the fact of accident and death of the deceased is clear from the F.I.R. lodged by the Block Development Officer. The post-mortem report indicates the nature of injury on the deceased and the name of the deceased whose dead body was also identified by the doctor. In such circumstances, once accident and death are proved, the circumstances of the accident are well within the knowledge of the driver of the vehicle or the helper. The principle of res ipsa loquitur should be attracted to such a case without requiring the claimant to prove further. Where the nature of accident is explained by the owner, or the owner colluding or remaining ex pane, by the insurer, Tribunal is to consider the contribution of the deceased to the accident. In such circumstances, it is to be examined whether there was negligence in driving the vehicle as a result of which there was the accident. In the present case, neither the owner nor the insurer has adduced any evidence. They rely upon the discrepancy in evidence adduced on behalf of the claimants which weighed with the Tribunal. Tribunal is not correct in its approach in the present case. From the discussion made above, I am not inclined to accept the finding of the Tribunal on the question of negligence. The matter is to be considered afresh.
6. Tribunal has not properly appreciated the amount to be awarded to the claimants. The liability of the insurer and the owner, income of the deceased to find out the loss of dependency and other factors are to be carefully gone into. In this respect it is to remembered that mother stated in her evidence that she has another son, though in the claim petition she stated the deceased to be her only son. Widow of the deceased has been examined. She has stated that her mother-in-law had three sons including the deceased. These are matters which should be considered to determine the loss of dependency and compensation payable to the mother.
7. Once I come to the conclusion that the matter of negligence is to be gone into, the widow and the daughter should not be deprived of compensation. They should also get their legitimate claim awarded. Submission of Mr. S.S. Basu, the learned Counsel for the insurer, that they had not preferred any appeal against the dismissal of their claim, would not stand in the way in the present case since I can exercise my power under Order 41, Rule 33, Civil Procedure Code and take care of the interest of the widow and the minor girl. It is to be remembered that there is clear evidence that on the death of the victim, the widow and the minor girl have been thrown out of the house. In such circumstances, non-filing of independent appeal by them should not be a ground to deprive them of the legitimate compensation in a benevolent legislation like the Motor Vehicles Act. Courts and Tribunals are always to remember and give the benefits to the persons who are entitled to them unless there is specific prohibition for the same in law. In the absence of any specific prohibition being brought in, when the widow and the minor daughter are indicated in the claim petition of the mother to be the other near relations who are entitled to compensation, dismissal of the separate claim petition should not stand in their way to get compensation.
8. On the materials available if I come to the conclusion that in the absence of explanation negligence of the driver is proved by applying the principle of res ipsa loquitur, injustice may be caused to the owner as in case of limited liability, the insurer will be called upon to pay to a limited extent and the balance would be saddled on the owner himself. In such circumstances, interest of justice would be best served in case I set aside the composite award and direct the Tribunal to hear both the claim petitions afresh. Parties shall be given full opportunity to adduce further evidence in this case. Since there is material to come to conclusion that there is negligence in driving the vehicle and the mother, widow and daughter are women who have become destitutes, insurer shall bear the costs to issue notice to the owner and claimants after which the enquiry shall be completed. Insurer shall appear before the Tribunal on 15.3.1993 and file requisites for service of notice on the owner and claimants.
9. In the result, the appeal is allowed, impugned award is set aside and both the claim petitions are remitted to the Tribunal for further enquiry. There shall be no order as to costs.