Judgment:
B.K. Somasekhara, J.
1. These two appeals sprout out of the same award passed on the O.P, 349 of 1987 by the Motor Accidents Claims Tribunal, Nizamabad dated 20th October, 1989. The appeliant in C-M.A. 303 of 1990 is the Insurer of the vehicle which involved in the accident. The appellant in CMA. 451 of 1990 is the claimant. It is an injury claim case.
2. The claimant aged 18 years and a labourer while travelling in an auto- rickshaw ATT 6206 belonging to one S. Narasaiah, the respondent No. 2 and while it was being driven by one Madhu Rajanna respondent No. 1 met with an accident on National Highway No. 7 near Gandhi-chowk at Mupkal village. The claim was laid on the allegation that the accident took place due to the rash and negligent driving of the auto-rickshaw by respondent No. 1. The claimant pleaded that he sustained serious injuries, he lost the abilities and also the then income and the future income, he suffered pain etc., and therefore, wanted to be compensated reasonably. It was resisted by the respondents 2 and 3. After inquiry, wherein the claimant examined himself as P.W.1 and two witnesses as per P. Ws.2 and 3 and produced certain documents, and after hearing both sides and after considering the material placed before him, the Tribunal held that the accident was due to the rash and negligent driving of the vehicle by the respondent No. 1 and that the claimant is entitled to recover a sum of Rs, 35,800/- by way of compensation and accordingly passed the award fixing the liability jointly and severally on all the respondents,
3. Mr. Kota subb Rao, learned Advocate for the appellant has presented a very serious grievance that although the Insurer-appellant has raised serious contention that the limit of liability, if any, could not have exceeded Rs. 15,000/- in view of the fact mat the vehicle involved in the accident is an auto-rickshaw and by virtue of Section 95(2) (b) (ii) of Motor Vehicles Act, 1939 but the Tribunal even did not consider that question much less accepted it which was the legal position in favour of the appellant.
4. The learned Advocate for the respondent No. 2 has seriously contended that having due regard to the implications of Section 95(2)(b)(ii)of the 1939 Act, it was for the Insurer-appellant to produce the Insurance policy and prove the extent of liability not the statutory limit of liability fixed therein. The learned Advocate for the appellant has submitted that a copy of the Insurance Policy was produced and marked as Ex.A-5 which by itself was sufficient to examine the terms and conditions, and the award itself does not disclose anything as such. It is not the endeavour of the learned Advocate for the respondent No. 2 that such a policy fixes the limit of liability on the part of the Insurer more than Rs. 15,000/- being the statutory liability under Section 95(2). The learned Counsel for the respondent appears to think that the burden of proving the limit of liability would be on the Insurer as a consequence, in view of the mandatory liability as an Insurer fixed under Sections 95 and 96 of the Act. This Court is unable to accept such a contention. The provisions of Evidence Act, no doubt are not applicable to the proceedings before the Motor Vehicles Accidents Claims Tribunal but the fundamental principles of evidence are still applicable. The burden of proof is a concept wherein a person asserting a fact should normally prove it unless the circumstances warrant presumptions by experience and realities. It is also the common rule of evidence that if either of the parties fail to produce evidence and in such a case one of the persons who would fail in the case, the burden would rest upon him to establish a fact. Admittedly the vehicle was insured with the appellant. The respondent No. 2 is the owner of the vehicle in whose favour the policy was issued. It is not his case that he was not issued an Insurance Policy. He was the custodian of the Insurance Policy. He was bound to produce the Insurance Policy to establish contrary to the contents of Ex. A-5, the copy of the Insurance Policy, which was produced to show that the limit of liability of the Insurance Company was something different from the contents of the Policy Ex.A-5 or something more than Rs. 15,000/- being the limit of statutory liability. Even assuming that the appellant proved to have been resiled from the document, when a statute fixes the limit of liability, unless it is established that the parties to the Insurance Polity being the contract of Insurance has agreed to be followed by another contract, the statute remains unaffected. In M.K. (sic) v. P.A. Ahmedkutty, AIR 1989 SC 2158 the Supreme Court has positively declared the law that the limit of liability under Section 95 sub-clause (sic. sub-section) (2) is maximum. Under the same time it has been held in National Insurance Co. Ltd., New Delhi v. Jugal Kishore, : [1988]2SCR910 that it is open to the parties to enter into a contract to fix higher liability on payment of higher premium. In other words, the variation from the statutory liability cannot be a question which requires proof, in the absence of the same, the limit of statutory liability remains unaffected. This is one such case.
5. Section 95(2) (b) (ii) mathematically fixes the liability on the part of the Insurance Company at Rs. 15,000/- per passenger travelling in an auto- rickshaw at the time of the accident. The claimant was the passenger in the auto- rickshaw at the time of the accident. Therefore, the limit of liability or otherwise on the part of the appellant-Insurance Company could not have been to the extent beyond Rs. 15,000/-. The Tribunal has totally ignored not only this legal position but also failed to consider such a serious question of law when particularly it was categorically raised by the Insurer. Therefore, to that extent, the award of the Tribunal requires to be interfered with and modified. Thus appeal No, 303/90 would come to a rest.
6. In CMA. 451 /90, the grievance of the claimant as the appellant is that the Tribunal directed deposit of the compensation in a nationalised bank for a longer period extending to six years which deprived the claimant from getting the benefits of the award and, therefore, such a direction which is said to be illegal is sought to be rejected. The claimant appears to have lost interest in the matter as the appeal has become infructuous on the expiry of the period of six years regarding the deposit. Even otherwise, on merits, the Tribunal was justified in issuing such a direction in view of the mandatory directions in Kerala State Road Transport, Trivandrum v. Susamma Thomas, : AIR1994SC1631 . Therefore, it was a discretion for the Tribunal to pass such orders and in the absence of any supporting fortifications this Court cannot interfere with such discretion. This appeal, therefore, deserves to be dismissed.
7. In the result, C.M.A. 303/90 is allowed. The award of the Tribunal is modified to the effect that the limit of liability of the Insurer, respondent No. 3 before the Tribunal shall be restricted to Rs. 15,000/- only in addition to the interest to be paid on that and also the costs awarded. Except this all the remaining portions of the award shall stand confirmed. The limit of liability of the remaining respondents shall be wholesome and shall be joint and several with the Insurer. As prayed for by the learned Advocate for the respondent No. 2, the owner of the vehicle, six months' time is granted for him to pay the amount under the Award. If any excess amount is deposited by the appellant than what is allowed under the modified award, that should be refunded to the appellant. C.M.A. No. 451/90 is dismissed. There shall be no order as to costs in these appeals.