Hon'ble SHARMA, J.—This appeal has been filed against the Award dated 8.6.2009 passed by Judge, Motor Accident Claims Tribunal Tonk in MACT Case No. 164/2007 whereby he dismissed the claim petition filed by the claimant- appellants.

2. The facts have been set out in the impugned judgment and hence I am not repeating the same here except wherever necessary.

3. Brief facts giving rise to this appeal are that the claimants filed a claim petition under Sec. 166 and 140 of the Motor Vehicles Act, 1988 before the Tribunal agaisnt the non-claimants. In the claim petition it was pleaded that claimant Smt. Ram Kanya was standing near shop of Babu Khangar then a tractor No.RJ 26 R 3778 came with high speed and hit Ram Kanya in which she sustained various injuries on 30.10.2006. At the time of accident she was pregnant and a dead child was born on 3.11.06 due to injuries. It was pleaded that accident took place due to rash and negligence of non-claimant No.1.

4. The non-claimants l and 2 filed reply to the claim petition wherein it was pleaded that no accident took palce with their tractor and police had involved the tractor after three days. It was also pleaded that the child was not died due to injuries. The non-claimant No.3 filed reply to the claim petition wherein it was pleaded that vehicle was falsely involved in the accident. It was also pleaded that non-claimant No.1 was not having valid and effective licence at the time of accident. It was also pleaded that there is no provision in regard to death of unborn child.

5. On the basis of the pleadings of the parties the Tribunal framed 5 issues including relief. In support of claim petition statements of three witnesses were recorded. Documentary evidence Ex.1 to Ex. 17 were also produced. On behalf of the non- claimants statements of two witnesses were recorded. After hearing the parties the Tribunal vide its judgment and award dated 8.6.2009 had decided issue No.1 in favour of the claimants and held that Ram Kanya sustained injuries in the accident took place with the rash and negligence of non-claimanant No.1 i.e. driver of Tractor No. RJ 26 R 3778. However the claim of the claimants was dismissed on the ground that unborn child is not a property or not a living person in view of judgment of S.B.Civil Appeal No. 661/2005 Margappa vs. Procter and Gambles decided on 2.5.2008. The issue No.4 was decided in favour of the non-claimant No.3 and held that driver was not having valid and effective license at the time of accident, therefore Insurance company is not liable to pay the amount of compensation.

6. Mr. Praveen Jain, learned counsel appearing for the claimants has argued that the finding of the Tribunal in respect of issue No.1 in regard to death of unborn child due to injuries sustained in the road accident is absolutely contrary to law and facts. The Tribunal had wrongly recorded a finding of fact that no postmortem report of unborn femable child was produced. The learned counsel has argued that the postmortem report was produced and was duly marked as Ex.4. From the postmortem report it is clearly revealed that during the treatment of Ramkanya a female dead child was born on 3.11.2006. The accident took place on 30.10.2006 and Ramkanya remained hospitalised for about 4 days from the accident. The injury report of Ramkanya was also produced on record by the claimants Ex.10. In the injury report Ramkanya sustained three injuries. The other medical evidence is Ex. l to Ex. 13 produced by the claimants. The learned counsel has argued that in these circumstances it is clearly proved that in the accident female child was died due to injuries sustained in the accident.

7. The learned counsel for the appellant has further argued that the findings of the Tribunal in respect of issue No.4 regarding liability of the insurance companay is absolutely incorrect. The non-claimant No.3 did not produce any oral or documentary evidence in support of their defence. Therefore violation in regard to dr

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