The limit of liability of an insurer under Section 95(2)(b)(ii) of the Motor Vehicles Act, 1939, for an auto-rickshaw passenger is Rs. 15,000/-. The burden of proving the limit of liability under the insurance policy is on the insurer.

B. K. SOMASEKHARA, J.

( 1 ) THESE two appeals sprout out of the same award passed on the OP. 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-chow k 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. I 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 that 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 thathavingdue 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.

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