Important Point
Tortfeasor cannot be permitted to take benefit of his own wrong.

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 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