JUDGMENT 1. IN this appeal, the order dated 17th March, 2009 passed by the learned Judge, M.A.C.T., 2nd Court, Malda in connection with MACT Case No. 15 of 2007 has been challenged whereby the claim petition filed by the present appellants was dismissed. 2. SRI Saidur Rahaman for the appellants has raised before us number of points in support of the appeal. Sri Rahaman has submitted since it has been proved that the victim was a child of tender age, concept of contributory negligence was not applicable in the present case. The Tribunal, according to Sri Rahaman, proceeded on the basis that it was not proved beyond shadow of doubt that the accident took place due to the rash and negligent act of the driver of the offending vehicle which was insured under the Company of the respondent since the mother of the child who was accompanying her was not examined. Sri Roy was of the view that as otherwise the case has been proved this could not have been a very strong circumstance to straightaway refuse the prayer for compensation, more particularly in the case having beneficial orientation. 3. IN support of his contention that in an accident involving the child, the principle of contributory negligence cannot be applied, Sri Rahaman has referred to a Division Bench decision of the Madhya Pradesh High Court in the case of Madhya Pradesh State Road Transport Corporation and Others v. Abdur Rahaman and Others reported in AIR 1997 Madhya Pradesh 248 and a Single Bench decision of the Madras High Court in the case of Muthusamy and Another v. S. A. R. Ammamalai and Others reported in AIR 1990 Madras 201. 4. SRI Rahaman has further referred to the decision of the Delhi High Court in the case of Delhi Transport Corporation and Another v. Kumari Lalita reported in AIR 1982 Delhi 558 and submitted that in such type of cases where the child suffers either any injury or meets with death on account of the accident, it is open to the Court to award generous amount of compensation. On the basis of the aforesaid submission, Sri Rahaman has prayed that the order of dismissal of the claim petition was not in accordance with law and the same was required to be set aside. 5. SRI Bhattacharyya for the respondent (Insurance Company) has opposed all the submissions of SRI Rahaman. On the basis of the aforesaid submission, Sri Rahaman has prayed that the order of dismissal of the claim petition was not in accordance with law and the same was required to be set aside. 5. SRI Bhattacharyya for the respondent (Insurance Company) has opposed all the submissions of SRI Rahaman. According to SRI Bhattacharyya, there is a clear question of estoppel as the mother of the victim was not examined, since she could have been the best witness. As such, according to SRI Bhattacharyya; for the failure to examine the mother, the appellants cannot derive any benefit on account of the dismissal of the claim petition. He has referred to a Full Bench decision of the Madras High Court in the case of Ramakotayya v. Viraraghavayya reported in AIR 1929 Madras 502 and an English decision in the case of Spiro v. Lintern and Others reported in (1973)3 All England Law Reports, 319 in support of his aforesaid contention. 6. MR. Bhattadcharyya has also submitted that the case is simply based on hearsay evidence as the mother of the victim was not examined and it was for the claimants to have established their case and in the absence of proof of the same, rightly the Tribunal has refused the claim petition. According to Sri Bhattacharyya, in order to prove a case of this nature, it has to be established that there has been an accident and the same has to be proved on the basis of legally sustainable evidence so as to connect the insurer with the said incident. He submitted that as the claimants have hopelessly failed to establish the case in respect of involvement of the insured vehicle and that too where death was due to rash and negligent act on the part of the driver, the appeal was required to be dismissed. After we have heard Sri Rahaman and Sri Bhattacharyya for the respective parties, we are now required to consider the evidence in the light of the decisions at the Bar. 7. THE Tribunal dismissed the claim petition by its order dated 17th March, 2009. Subsequently, the prayer for review was made which was also refused on 8th March, 2010. Hence this appeal. 8. 7. THE Tribunal dismissed the claim petition by its order dated 17th March, 2009. Subsequently, the prayer for review was made which was also refused on 8th March, 2010. Hence this appeal. 8. THE Tribunal based its finding mainly on, the ground that the best evidence of the mother of the deceased not having been put forward, the evidence of P.W. 1 that the vehicle was being driven rashly and negligently cannot be accepted since he was not witness of the occurrence and also as the evidence that the vehicle was driven recklessly not having been proved, the claim petition was not maintainable. In the light of the same, we have to see as to whether the order under appeal can be sustained. 9. FIRSTLY, we find that the vehicle insured by the respondent was involved in the accident have been borne out from the evidence and materials on record. Once we have covered this situation, it would not be required for us to address the point raised by Sri Bhattacharyya on the basis of the finding returned by the Tribunal that in the absence of ocular evidence, it could not be proved that the vehicle was driven recklessly and negligently. At once this question has its answer from the decisions in the case of Madhya Pradesh State Road Transport Corporation and Others v. Abdur Rahaman and Others reported in AIR 1997 Madhya Pradesh 248 and a Single Bench decision of the Madras High Court in the case of Muthusamy and Anotherv. S. A. R. Ammamalai and Others reported in AIR 1990 Madras 201 relied upon by Sri Rahaman. Once it is seen that there cannot be any culpable contributory negligence in respect of a child, it would be deemed that the vehicle was driven rashly and negligently which resulted in the accident. 10. THE Tribunal was dealing with the claim petition. Neither it was presiding over a regular sessions trial or a civil suit where all the nitty-gritty of the evidence and the rigors of the procedural law would be available. Even though the mother was not examined, steps easily could have been taken by the Tribunal to have her brought on record and in a pro-active manner ascertain the facts not before it by way of application of Section 165 of the Evidence Act. Even though the mother was not examined, steps easily could have been taken by the Tribunal to have her brought on record and in a pro-active manner ascertain the facts not before it by way of application of Section 165 of the Evidence Act. Without meaning any disrespect to the Tribunal, we feel the approach has been simply cut and dried which has resulted in a mechanical finding returned by the Tribunal that has been brought in appeal. While arriving at our conclusion, we have applied our mind to the decisions cited by Sri Bhattacharyya in the case of Ramakotayya v. Viraraghavayya reported in AIR 1929 Madras 502 and an English decision in the case of Spiro v. Lintern and Others reported in (1973)3 All England Law Reports, 319. To drive home his point that the mother of the victim not being examined gave rise to scope of estoppel for the appellants to re-agitate the point in this appeal once it was dismissed, we are of the considered view that the Full Bench decision of the Madras High Court in the case of Ramakotayya v. Viraraghavayya reported in AIR 1929 Madras 502 and as well as the English decision in the case of Spiro v. Lintern and others reported in (1973)3 All England Law Reports, 319 would not be applicable in the present case. Both decisions related to regular civil suits and this being a claim petition having beneficial orientation, the scope of the proceeding is quite different and wide enough. Once we have found that the order under appeal is completely unsustainable, we set aside the same and remand the matter before the Tribunal for a fresh decision in accordance with law and if necessary, for examination of fresh witness on behalf of both sides and to take a decision thereafter. The entire exercise must be concluded within three weeks from the date of communication of this order. Thereafter the Tribunal will write a fresh judgment on the basis of the evidence and materials. The appeal is allowed.