JUDGMENT : M.R. Shah, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned Motor Accident Claims Tribunal (Auxi.), Vadodara (hereinafter referred to as "Tribunal") in Motor Accident Claim Petition No. 1356/2001 by which the learned Tribunal has partly allowed the said claim petition and has directed the original opponents including the appellant herein - insurer to pay a total sum of Rs. 3,37,000/- with 7.5% interest per annum thereon from the date of claim petition till realization towards compensation for the death of deceased Rameshbhai Parmar, original opponent No. 3 - insurer has preferred the present First Appeal. 2. That the original claimants filed the aforesaid claim petition before the learned Tribunal claiming a total sum of Rs. 5 lac towards compensation for the death of deceased Rameshbhai Maganbhai Parmar alleging inter alia that on 21.07.2001, when the deceased Rameshbhai was driving the Jeep bearing No. GJ-6JJ-9875 and proceeding from village Himatpura to Dabhoi - Sinor road, the tyre of the jeep got punctured due to which the jeep slipped and dashed with the tree and the deceased Rameshbhai sustained serious injuries. It was also the case on behalf of the original claimants that deceased was getting Rs. 2500/- as a driver. Therefore, the original claimants claimed a total sum of Rs. 5 lac towards compensation. 2.1 At this stage it is required to be noted that in the original claim petition nobody was named as driver of the jeep and no name has been mentioned so far as original opponent No. 1 is concerned. Original opponent No. 2 was joined as owner of the jeep involved in the accident, who happened to be the father of the deceased himself. The original opponent No. 3 - United India Insurance Co. Ltd. was joined as insurer of the vehicle involved in the accident. It appears that during the pendency of the claim petition the original opponent No. 2 - owner of the jeep died and therefore, one of the son was joined as heir and legal representative of original opponent No. 2. The claim petition was opposed by the insurer by filing the written statement at Exh. 13. It appears that during the pendency of the claim petition the original opponent No. 2 - owner of the jeep died and therefore, one of the son was joined as heir and legal representative of original opponent No. 2. The claim petition was opposed by the insurer by filing the written statement at Exh. 13. It was the case on behalf of the insurer that as the deceased himself was driving the jeep and he himself was negligent for the accident, the insurance company cannot be held liable to pay the compensation. That on appreciation of evidence the learned Tribunal has held the issue No. 1 against the deceased and consequently against the original claimants and has held that the deceased himself can be held responsible and/or negligent for the accident. On appreciation of evidence the learned Tribunal has also held that at the time of accident the deceased Rameshbhai Maganbhai Parmar himself was driving the jeep. However, considering the insurance policy more particularly the additional premium was paid covering the risk of the driver, observing that the deceased was serving as a driver of the jeep, as he himself was driving the jeep, the learned Tribunal has held the insurer also liable to pay the compensation. That on appreciation of evidence the learned Tribunal has held that the original claimants are entitled to a total sum of Rs. 3,37,000/- with 7.5% per annum from the date of claim petition till realization from all the opponents including the appellant - insurer. 2.2 Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned Tribunal insofar as holding the appellant - insurance company - insurer liable to pay the compensation to the original claimants towards compensation for the death of deceased Rameshbhai, the original opponent No. 3 - insurer - United India Insurance Co. Ltd. has preferred the present First Appeal. 3. Shri Vibhuti Nanavati, learned advocate appearing on behalf of the appellant - insurance company has vehemently submitted that in the facts and circumstances of the case, learned Tribunal has materially erred in holding the appellant - insurance company liable to pay the compensation. Ltd. has preferred the present First Appeal. 3. Shri Vibhuti Nanavati, learned advocate appearing on behalf of the appellant - insurance company has vehemently submitted that in the facts and circumstances of the case, learned Tribunal has materially erred in holding the appellant - insurance company liable to pay the compensation. 3.1 It is vehemently submitted by Shri Nanavati, learned advocate appearing on behalf of the appellant – insurer that in the present case the learned Tribunal has materially erred in holding the appellant – insurance company liable to pay the compensation by observing that the deceased was serving as a driver of the jeep. 3.2 It is vehemently submitted that in fact as per the pleadings in the original claim petition by the original claimants and even in her deposition it was the specific case on behalf of the original claimants that the deceased himself was driving the jeep. It is submitted that even in the claim petition also it has been stated that the deceased was serving as a driver of the tempo. It is submitted that in the present case the learned Tribunal has held the insurance company liable to pay the compensation by holding that the deceased was driver of the jeep solely on the ground that the deceased was driving the jeep. It is submitted that to cover the risk on payment of the additional premium with respect to driver, what is required to be considered is the employed driver and not any person who was driving the jeep. 3.3 It is further submitted that as such in the present case the learned Tribunal has specifically given the finding that the jeep was being driven by the deceased himself and that he was negligent for the accident. It is submitted that therefore also the learned Tribunal ought not to have held the appellant - insurance company liable to pay the compensation on the ground that the tort feasor cannot take the benefit of his own wrong. In support of his above submissions, he has heavily relied upon the following decisions of the Hon'ble Supreme Court as well as this Court. (1) (2009) 2 SCC 417 New India Assurance Company Ltd. Vs. Sadanand Mukhi & Ors. (2) 2011 (2) GLR 1003 (Gujarat) National Insurance Co. Ltd. vs. Heirs & LRs. Of Hiteshbhai Sureshbhai Patel & Ors. (3) 1986 GLH 573 United India Insurance Co. (1) (2009) 2 SCC 417 New India Assurance Company Ltd. Vs. Sadanand Mukhi & Ors. (2) 2011 (2) GLR 1003 (Gujarat) National Insurance Co. Ltd. vs. Heirs & LRs. Of Hiteshbhai Sureshbhai Patel & Ors. (3) 1986 GLH 573 United India Insurance Co. Ltd. v. Jagatsinh Valsinh. 4. Present First Appeal is opposed by Shri M.M. Mehta, learned advocate appearing on behalf of the original claimants. It is vehemently submitted that in the facts and circumstances of the case and when it has been found that deceased was driving the jeep and therefore, was driver of the jeep and therefore, considering the insurance policy and the additional risk covered on payment of additional premium of driver, the learned Tribunal has not committed any error in holding the appellant - insurance company liable to pay the compensation. 4.1 It is further submitted that even the finding recorded by the learned Tribunal that the deceased who was driving the jeep himself was negligent, is erroneous. It is submitted that as such the accident occurred because of the tyre puncture and the jeep slipped and it dashed with the tree. It is submitted that therefore, it cannot be said that the deceased himself was negligent for the accident. It is submitted that in any case when the additional risk of driver was covered on accepting the additional premium and when the learned Tribunal has given the finding that the deceased was the driver of the jeep, the learned Tribunal has rightly held the insurance company liable to pay the compensation. Making above submissions, it is requested to dismiss the present First Appeal. 4.2 In the alternative it is submitted by Shri Mehta, learned advocate appearing on behalf of the original claimants that if this Court comes to the conclusion that the learned Tribunal has committed an error in holding the appellant - insurance company liable to pay the compensation, in that case suitable observations be made that whatever amount the original claimants have already withdrawn may not be recovered from them. 5. 5. Shri Vibhuti Nanavati, learned advocate appearing on behalf of the appellant - insurance company has stated at the Bar that if this Court comes to the conclusion that the learned Tribunal has committed an error in holding the appellant - insurance company liable to pay the compensation, in that case, the insurance company shall not recover any amount which the original claimants have withdrawn, however they may be permitted to recover the same from the original owner. 6. Heard learned advocates appearing for respective parties at length. I have re-appreciated the entire evidence on record. At the outset it is required to be noted that as pleaded by the original claimants even in the claim petition and even as deposed by the original claimant No. 1 - Ushaben, the deceased himself was driving the jeep. It is also so pleaded and so stated by the original claimant No. 1 in her deposition that the deceased was serving as a driver of Tempo and earning Rs. 2500/- per month. Nothing is on record that the deceased was employed as a driver of the jeep. At this stage it is required to be noted that as such the jeep involved in the accident was owned by the father of the deceased himself. Merely because the deceased was driving the jeep, he cannot be said to be the driver of the jeep of which the risk was covered on payment of the additional premium. Only in a case with respect to the employed driver of the jeep, the additional risk of such driver on payment of additional premium can be said to have been covered. The learned Tribunal has held the appellant herein - insurance company liable to pay the compensation solely on the ground that as the deceased was driving the jeep and therefore, he can be said to be the driver of the jeep, which cannot be sustained. As observed hereinabove, there is no evidence on record that the deceased was employed as driver of the jeep that too by his father - owner of the jeep. As observed herein above on the contrary it was the case on behalf of the original claimants so pleaded in the claim petition as well as so stated in the deposition that the deceased was serving as a driver of tempo. As observed herein above on the contrary it was the case on behalf of the original claimants so pleaded in the claim petition as well as so stated in the deposition that the deceased was serving as a driver of tempo. Under the circumstances, the learned Tribunal has materially erred in holding the appellant - insurance company liable to pay the compensation considering the additional premium paid with respect to covering the additional risk of the driver. 6.1 Even otherwise the impugned judgment and award passed by the learned Tribunal holding the appellant - insurance company liable to pay the compensation cannot be sustained. It is required to be noted that the deceased himself was driving the jeep, even as admitted by the original claimants. Even the learned Tribunal has also held that at the time of accident the jeep was being driven by the deceased himself. There is a specific finding recorded by the learned Tribunal that the deceased himself can be said to be negligent for the accident. In that view of the matter, the tort feasor cannot be permitted to take benefit of his own wrong and therefore also, the insurance company - insurer could not have been held liable to pay the compensation. This view is supported by the decisions of the Hon'ble Supreme Court in the case of Sadanand Mukhi & Ors. (Supra) and decisions of this Court in the case of Hiteshbhai Sureshbhai Patel (Supra) and Jagatsinh Valsinh (Supra). In view of the above and for the reasons stated above, impugned judgment and award passed by the learned Tribunal holding the appellant - insurance company liable to pay the compensation cannot be sustained and the same deserves to be quashed and set aside. 7. In view of the above and for the reasons stated above, present First Appeal is allowed and the impugned judgment and award passed by the learned Motor Accident Claims Tribunal (Auxi.), Vadodara in Motor Accident Claim Petition No. 1356/2001 is hereby quashed and set aside. However, it is observed and ever as agreed by Shri Nanavati, learned advocate appearing on behalf of the appellant - insurance company that whatever amount the original claimants have withdrawn pursuant to the earlier order passed by this Court i.e. 30% of the amount and the interest paid on the fixed deposit, the same may not be recovered from the original claimants. It is reported that pursuant to the earlier order passed by this Court in Civil Application No. 11500/2009, the original claimants were permitted to withdraw 30% of the amount deposited by the insurance company and remaining 70% was ordered to be invested in the fixed deposits in the name of original claimants and the fixed deposits were ordered to be kept with the Nazir. However, the original claimants were permitted to withdraw the periodical interest on the said fixed deposits. Under the circumstances, on allowing the present First Appeal and quashing and setting aside the impugned judgment and award subject to the aforesaid observation, the appellant herein - insurance company shall be returned the remaining amount i.e. 70% of the amount as invested in the fixed deposits, which is lying in the name of the original claimants and the learned Tribunal to pay the same to the appellant herein - insurance company. Present First Appeal is allowed to the aforesaid extent. In the facts and circumstances of the case, there shall be no order as to costs.