B.A. Khan. - Appellant company seeks setting aside of judgment/award dated 31.1.1990, passed by M.A.C.T., Jammu, awarding compensation of Rs. 1,00,000/- along with interest at the rate of 12 per cent per annum to respondent Nos. 1 to 3.

2. The ground taken is that Tribunal had wrongly determined the liability of the appellant company as unlimited, when the same was limited to Rs. 50,000/- as per the terms, of insurance policy. It is also pointed that the Tribunal had miscalculated the compensation amount casting an additional liability of Rs. 10,000/- on the company.

3. The short controversy requiring determination is whether in the facts and circumstances of the case liability of the insurance company could be said to be unlimited or limited to Rs. 50,000/-, as claimed. It is well settled that liability of the insurance company must be held to be unlimited, unless specific plea is taken by the company in defence that its liability is limited and that there is the policy of insurance on record to substantiate it. This position is established from a long line of decisions of the various High Courts. Reference in this regard can be made to:

(i) General Assurance Society Ltd. v. Avtar Singh, 1986 ACJ 652 (P&H); (ii) Ramesh Gupta v. Savitri Devi, 1987 ACJ 203 (P&H) and (iii) Mukhtiar Singh v. Krishna Gulati, 1987 ACJ 961 (P&H).

4. It is in this context that it requires to be examined whether appellant company had taken any such plea in its defence before the Tribunal. In this regard the company is relying on one of the averments made in the written statement filed before the Tribunal which reads as under :

That answering respondent takes all the pleas to defence which are available to us under sections 95 and 96 of Motor Vehicles Act.

The argument advanced is that from the aforesaid averment Tribunal should have concluded that liability of the company was limited as envisaged in the statutory provisions of section 95, of the Act.

5. In my opinion, the contention raised is both misconceived and fallacious. So is the reliance placed on averment made in company™s reply extracted hereinabove. I don™t think that averment in question meets the requirement. There is no specific plea raised about company™s limited liability, nor can any resort be had in such a situation to provisions of section 95 to show the extent of liability. In such matters insurance policy is the best and only guide.

6. The admitted position is that appellant company had failed to produce the policy of insurance before Tribunal to show that its liability was limited to Rs. 50,000/-. Nor did it lead any evidence on this aspect. So much so that the question of companys liability did not form any issue before the Tribunal. Therefore, I feel no reluctance in holding that liability of company was unlimited. The challenge posed by appellant should naturally fail to that extent.

7. Mr. Jamwal, learned counsel for the appellant, had cited New India Assurance Co. Ltd. v. C.S. Ouseph. 1993 ACJ 203 (Kerala), to persuade me to consider the photostat copy of the policy of insurance appended to the memo of appeal. I am afraid, I am not inclined to do it for the simple reason that I have my own doubts about the authenticity of this document, which is not even attested or authenticated by any authority. It would be improper to take it into account at this stage at the back of the other side.

8. As regards the error committed in calculating the amount awarded, appellant™s grievance deserves redressal. On an ordinary calculation, amount of compensation comes to Rs. 1,08,000/- which on deduction of Rs. 18,000/- is reduced to Rs. 90,000/-. The error is corrected and the compensation awarded shall be Rs. 90,000/- along, with interest at the rate of 12 per cent per annum. It is pointed out that Rs. 50,000/- stand deposited in fixed term deposit and an amount of Rs. 15,000/- has been paid to respondents by way of interim relief. The balance amount shall be paid to them within one month from today,

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