( 1. ) THIS Full Bench has been constituted on a reference made by a learned single judge of this court to decide the following questions of law ;

" (1) Whether, in a claim case for compensation exceeding the minimum statutory limit, as prescribed under Section 95 of the Motor Vehicles Act, the claimant cannot be awarded a sum higher than the said minimum statutory limit against the insurance company unless he pleads and proves that the insurer provided in the contract of insurance for a sum higher than that fixed under Section 95 (2) (b) ? (2) Whether the Tribunal can award against the insurance company a compensation amount in excess of the minimum statutory limit, as provided under Section 95 of the Motor Vehicles Act when neither the claimant nor the insurer has pleaded or proved the terms and conditions of the insurance policy ?"

( 2. ) THE material facts giving rise to this reference, briefly, are as follows :

Respondent No. 1 who was travelling in a passenger bus owned by respondent No. 2 and driven by respondent No. 3 sustained injuries in an accident caused by rash and negligent driving of the bus. On an application made by respondent No. 1 before the Motor Accidents Claims Tribunal, Mandleshwar, under the provisions of Section 110a of the Motor Vehicles Act, 1939 (hereinafter referred to as "the Act"), the Tribunal found that respondent No. 1 was entitled to compensation amounting to Rs. 15,000. The Tribunal held that respondents Nos. 2 and 3 along with the appellant insurance company which was subsequently impleaded as non-applicant No. 3 were jointly and severally liable to pay the amount of compensation. Aggrieved by the award made by the Tribunal, the appellant insurance company preferred an appeal before this court. When that appeal came up for hearing before a learned single judge of this court, the only ground raised on behalf of the appellant was that even though the maximum liability imposed on the appellant under the provisions of Section 95 (2) (b) of the Act was Rs. 5,000, as more than six passengers were allowed to be carried in the passenger bus in question, the Tribunal erred in law in holding the appellant liable to pay the sum of Rs. 15,000, the entire amount of compensation, even though the claimant had neither pleaded nor proved that the contract of insurance entered into between the owner of the vehicle and the insurance company provided for payment of any sum in excess of that fixed by the statute. The appellant also produced before the learned single judge a true copy of the policy of insurance to substantiate its contention. The learned single judge held that the appellant insurance company could not be allowed to adduce additional evidence at the appellate stage as the appellant had failed to plead that its liability under the policy of insurance did not exceed the amount fixed by the statute under Section 95 (2) (b) of the Act. The learned single judge held that, on the question as to whether the burden of proof lies on the insurance company or on the applicant to prove that the liability of the insurance company was in excess of the statutory limit fixed by Section 95 (2) (b) of the Act, there was conflict between two Division Bench decisions of this court in Sushila Devi v. Ibrahim [1974] ACJ 150 and Rehana v. Abdul Majeed [1986] 60 Comp Cas 893 (MP ). To resolve that conflict, the learned single judge has made this reference.

( 3. ) SHRI Jain, learned counsel for the appellant, contended that the burden to prove the negative that there was no term in the policy of insurance which made the insurance company liable to pay any amount higher than that fixed by Section 95 (2) (b) of the Act, could not be placed on the insurance company, especially when the claimant had not alleged that there was any such term, that in any event, for a proper decision on the question of the liability of the appellant, the appellant had placed on record a true copy of the policy of insurance before the lea