- (1.) IN this appeal, the argument advanced by learned counsel for the insurance company is that the liability of the insurance company was limited to the extent of Rs. 50,000 but the learned single judge has erroneously held that the insurance company would be liable for the entire amount awarded as compensation, which is Rs. 1,44,000.
(2.) IT may be observed that the insured and the insurance company filed a joint written statement before the Motor Accidents Claims Tribunal in which it was pleaded that the liability of the insurance company was limited to the extent provided under Section 95 of the Motor Vehicles Act. Following issue No. 3 was framed by the Tribunal: '3. Whether the liability of non -petitioner No. 3 is limited to the extent provided under Section 95 of the Motor Vehicles Act, 1939, N.P. 3. ' Thus, the burden of issue No. 3 was placed on the insurance company, non -petitioner No. 3, before the Tribunal. No evidence was led by either party in respect of issue No. 3 nor the insurance policy or a copy thereof was produced. The Tribunal passed an award for a sum of Rs. 50,000. On appeal, the learned single judge enhanced the amount of compensation and awarded Rs. 1,44,000. Before the learned single judge it was argued on behalf of the insur -rance company that merely because the insurance policy was not produced, the liability of the insurance company could not be treated as unlimited. The learned single judge observed that the burden of proof in respect of issue No. 3 was on the insurance company and as the burden was not discharged by the insurance company by leading any evidence, the insurance company would be held liable for the entire amount.
(3.) WE find no reason to disturb the aforesaid finding arrived at by the learned single judge. If none of the parties led any evidence, then 'the party upon whom the burden of an issue is placed must fail. The burden of issue No. 3 was specifically placed on the insurance company, who was non -petitioner No. 3 before the Tribunal. As observed above, the insurance company did not produce a copy of the insurance policy nor get the original insurance policy produced from the insured, although a common defence was presented before the Tribunal by the insured and the insurance company. No other evidence was led by the insured or by the insurance company in respect of issue No. 3 relating to the extent of liability of the insurance company. In the absence of any evidence being led by any of the parties, issue No. 3 was naturally decided against the insurance company, upon whom the burden was placed.;