JUDGMENT :

Anil Satyavijay Kilor, J.

1. The rejection of a claim petition preferred by the appellants/claimants, under Section 166 of the Motor Vehicle Act, on a death of wife of the appellant no. 1 and mother of appellant nos. 2 and 3, in an accident, by the Motor Accident Claims Tribunal, Achalpur, vide judgment and order dated 3rd February, 2007 in Motor Accident Claim Petition No. 12 of 2005, has been questioned in the present appeal.

2. The facts giving rise to the present petition are as follows:

On 31st March, 2005, the deceased Baby was traveling in a jeep bearing no. MP 04 G 439 owned by the respondent no. 1. The driver of the said vehicle was driving the vehicle in a high speed and in a negligent manner which resulted into a violent dash to a tree. The deceased Baby received severe injuries and succumbed to the same.

3. The husband of the deceased Baby and her two sons filed a claim petition under Section 166 of the Motor Vehicle Act and thereby claimed Rs. 5,00,000/- towards compensation.

4. The owner of the jeep did not appear and file a written statement before the Tribunal, though he was served.

5. The respondent no. 2 Insurance Company resisted the claim by filing a written statement, on the grounds that the driver of the offending vehicle was not holding effective and valid motor driving licence on date of accident and the offending jeep was insured for private use but it was used for commercial purpose in breach of condition of the Insurance policy.

6. The appellant no. 1 examined himself and he was cross-examined by the Insurance Company.

7. The appellants filed certified copies of First Information Report, Spot Panchanama, Inquest Panchanama, copy of license of the driver and post mortem report, in support of their claim.

8. The evidence of the appellant no. 1 has not been seriously challenged by the Insurance company.

9. However, the claim petition has been rejected by the learned Tribunal on three grounds namely:

(a) the claimants have suppressed the actual age of the deceased Baby thus the claim is based on falsity.

(b) the husband of the deceased Baby, being an earning member, cannot claim compensation for death of his wife in the accident.

(c) the claimant nos. 2 and 3 being major sons of the deceased Baby, are not entitled to claim any compensation.

10. The said judgment and order dated 3rd February, 2007, is assailed in the present appeal.

11. Heard Shri Agrawal, learned counsel for the appellants, Shri K.B. Zinjarde, learned counsel for the legal representatives of respondent no. 1 owner of the offending vehicle and Shri S.K. Pardhy, learned counsel for the Insurance Company.

12. Shri Agrawal, learned counsel for the appellants submits that the claimants are from tribal area. In absence of any birth record of the deceased, approximate age had been mentioned as 38 years in the claim petition. But on the inquest panchanama which was produced on record by the claimants, the age of the deceased has been recorded as 45 years. Thus, he argues that had there been any intention of the claimants to suppress the correct age of the deceased, they would not have filed the copy of inquest panchanama. It is submitted that the learned Tribunal failed to consider the same while rejecting the claim petition of the appellants on the ground of falsity of claim.

13. He further submits that the rejection of claim on the ground that the husband and major sons are not entitled for any claim under the Motor Vehicle Act, is contrary to settled law position and therefore he submits that the impugned judgment and order dated 3rd February, 2007 suffers from non consideration of the facts and circumstances of the case, so also the provisions of law.

14. On the other hand Shri Zinjarde, learned counsel for the legal heirs of the owner of the offending jeep submits that it is not the case of the Insurance Company that legal heirs of the origin