JUDGMENT M.Y. Eqbal, J. 1. The appellant Oriental Insurance Company Limited has filed this Letters Patent Appeal against the Judgment dated 1.2.1994 passed by learned Single Judge in Misc. Appeal No. 77/1992 (R), whereby the appeal was allowed and it was held that the entire amount of compensation is payable by the appellant/Insurance Company. 2. The facts of the case lies in a narrow compass. 3. The claimant-respondents filed Title (Motor Vehicle) Suit No. 58 of 1989 before the Accident Claims Tribunal, Dhanbad claiming compensation on account of death of her husband in a motor vehicle accident. The deceased husband of the claimant namely. Shiban Kumar Sarkar was going to Sudamdih from Jharia by his motor cycle and when he reached near Shalimar, a truck bearing Registration No. BRY 7343 came with high speed and dashed his motor cycle causing his instantaneous death. The respondent No. 1, owner of the truck contested the claim by filing written statement. Besides other defence, it was stated that at the relevant time the truck was insured with the appellant Oriental Insurance Company bearing Policy No. 33273/3/217/MV/4370/88/TP. The appellant-Insurance Company also filed written statement taking various defence including that its liability was strictly limited to the terms and conditions and the exceptions of the policy and also to the provisions of the Motor Vehicles Act. The Tribunal awarded a sum of Rs. 2,88,000/- by way of compensation and held that both the defendants respondents namely, the owner and insurer of the vehicle will be jointly and severally liable to pay the said amount of compensation. The Tribunal further directed that out of total compensation, a sum of Rs. 1,50,000/-shall be paid by the Insurance Company and the balance amount, shall be paid by the owner of the vehicle. 4. Aggrieved by the judgment and award the owner of the vehicle filed the appeal before this Court under Section 110D of the Motor Vehicles Act. 1939 being Misc. Appeal No. 77/92 (R). In the said appeal the respondent Insurance Company filed an application Under Order 41, Rule 27 of the Code of Civil Procedure praying the Court to allow it to adduce premium register and money receipt by way of additional evidence. In the said application it was contended that the original insurance policy was in the custody and possession of the owner of the vehicle. In the said application it was contended that the original insurance policy was in the custody and possession of the owner of the vehicle. A counter-affidavit was also filed by the Insurance Company stating inter alia that in the written statement the company took the defence that the liability is strictly limited to the requirements of the Motor Vehicles Act i.e. to the extent of Rs. 1,50,000/-. Before the Misc. Appeal No. 77/92 (R) was taken up for final hearing, learned Single Judge passed the following order on 7.1.1994, which reads as under:-- "Heard learned counsel for the appellant and the respondent Insurance Company. A counter affidavit has been filed in this case but the Insurance Company has failed to file a copy of the insurance policy. Let this case be placed on 12.1.1994 as first case, on which date a further affidavit must be filed enclosing the copy of the insurance policy. If the respondent Insurance Company fails to do so. then serious view will be taken in the matter." 5. Again the matter was listed on 12.1.1994 on which the Appellant-Insurance Company produced certified copy of the insurance policy. Learned Single Judge thereafter passed the impugned judgment which is the subject matter of this appeal. 6. Mr. G.C. Jha. learned counsel appearing for the Appellant Insurance Company mainly contended that the learned Single Judge erred in not correctly appreciating the law with regard to limitation of liability of the Insurance Company in a case where policy is issued with Statutory liability. On the other hand, Mr. S.N. Lal, learned counsel appearing for the respondent-owner of the vehicle submitted that admittedly the Appellant Insurance Company failed to produce and prove the insurance policy before the Tribunal and therefore learned Single Judge had rightly directed the insurance company to pay the entire amount of compensation. Learned counsel put heavy reliance on two Division Bench, judgments of this Court in the case of Md. Hyder All v. Laxmi Devi & Ors. (2001) 1 JLJR 125 and in the case of National Insurance Company Ltd. v. Harish Chandra Ganguly and Anr., (2001) 2 JLJR 127 . 7. Before deciding the real issue, I would first like to discuss the impugned judgment passed by learned Single Judge. Hyder All v. Laxmi Devi & Ors. (2001) 1 JLJR 125 and in the case of National Insurance Company Ltd. v. Harish Chandra Ganguly and Anr., (2001) 2 JLJR 127 . 7. Before deciding the real issue, I would first like to discuss the impugned judgment passed by learned Single Judge. Learned Single Judge firstly dealt with the Schedule of Tariff prescribing the premium for insurance of goods carrying vehicles based on their capacity and also the meaning of word "Comprehensive Cover. "Liability to the Public Risk." and "Act Liability Cover". Learned Single Judge considered the copy of the insurance policy produced by the Insurance Company and referred Section II of the Policy relating to liability to Third Party and held as under:-- "In the present case it is evident from the certificates of Insurance, the copy of the Insurance policy and also the money receipts filed by the respondent-Insurance Company that the petitioner had paid Rs. 240/- only as the premium for coverage of the liability to public risk whereas for coverage of liability to the extent of the minimus statutorily fixed liability which has been defined under the Tariff as "Act only Liability" is only Rs. 200/-. Therefore, there is no escape from holding that the respondent Insurance company is liable to indemnify the owner of the vehicle for the entire liability arising in respect of the claims by the public under the Act because of any accidentally personal injury." 8. Learned Single Judge then discussed Section II of the Policy which relates to liability to Third Party and observed:-- "From the above referred stipulations in the Insurance Policy it stands admitted that the respondent-Company had undertaken to indemnify the appellant of "such amount as is necessary to meet the requirements of the Motor Vehicle Act. 1939." 9. Learned Single Judge However, further observed as under:-- "It cannot be disputed that under the provisions of the Motor Vehicles Act, the owner of a vehicle is required to pay compensation in case of death or bodily injury caused by or arising out of the use of the motor vehicle This requirement arises keeping in view the mandatory provisions contained under Chapters VIIA and VIII of the Act. Therefore, keeping in view the "Limits of Liability" clause contained in the Insurance Policy, as quoted above. Therefore, keeping in view the "Limits of Liability" clause contained in the Insurance Policy, as quoted above. It is incumbent upon the respondent insurers to indemnify the appellant for the entire amount which is required to be paid by him under the provisions of the Act pursuant to the award made by the Tribunal. On an interpretation of a similar clause pertaining to liability to third parties and on some what identical facts the Madhya Pradesh High Court has also taken a similar view in the case of New India Assurance Co. Ltd. v. Nanak Chand Ben, reported in 1989 ACJ 169 (M) by holding that. "Reading of these clauses of the policy would indicate that the insurance company had under taken to indemnify the insured to the extent of such amount as is necessity to meet the requirements of the Motor Vehicles Act. 1939. Apparently this clause is widely worded and covers the entire liability of the owners. Limits to this extensive liability are provided in the proviso to the aforesaid section and do not include a case like the present one. Under the circumstances, this provision would indicate that the Insurance Company under this policy has undertaken to indemnify the insured of his total liability under the Motor Vehicles Act. The words "requirements of the Motor Vehicles Act. The words "requirements of the Motor Vehicles Act, 1939" cannot be read as requirements of Section 95 only. Then it cannot be over-looked that Section 95 does not deal with the requirement of insured or the owner of vehicle, it only limits the liability of the insurance company. For this reason. Section 95 of the Act cannot be read into this clause of the policy. This is how a comprehensive policy has been interpreted by a Division Bench of Karnataka High Court in Sundaram Finance Ltd. v. D.G. Nanjappa, 1980 ACJ 377 (Karnataka)." 10. Relying upon the decision of the Madhya Pradesh High Court, the learned Single Judge held that the entire amount of compensation is payable by the Insurance Company. 11. From the impugned judgment, it is therefore clear that the learned Single Judge has considered the copy of the Insurance Policy filed by the Insurance Company and held that the Company had under-taken to indemnify the owner of such amount as was necessary to meet the requirements of the Motor Vehicles Act. 1939. 12. 11. From the impugned judgment, it is therefore clear that the learned Single Judge has considered the copy of the Insurance Policy filed by the Insurance Company and held that the Company had under-taken to indemnify the owner of such amount as was necessary to meet the requirements of the Motor Vehicles Act. 1939. 12. Now, I shall discuss the decision of the Division Bench, referred to herein above. In the case of "National Insurance Co. Ltd. v. Harish Chandra Ganguly" (Supra), the entire liability for payment of compensation was fastened upon the Insurance Company because of non-production of Insurance Policy before the Tribunal. Against the judgment and award of the Tribunal, the Insurance Company preferred appeal which was dismissed by the learned Single Judge holding that since the Insurance Company failed to produce and prove the Insurance Policy, the Tribunal has rightly awarded the entire compensation against it. The Insurance Company then preferred Letter Patent Appeal before the Division Bench. Dismissing the appeal their lordships held:-- "It is now a well established principle of law that if an Insurance Company has limited liability based upon any term in the Insurance Policy, it becomes its duty to specifically take up such a plea in the written statement, to have an issue raised to that effect, to get the Policy proved during the course of trial and adduce such other evidence as would establish that, in fact, the liability of the Insurance Company was limited. Such is the mandate as contained in Section 96, read with Section 95, of the Motor Vehicles Act, 1939. Even though under Section 96, the Insurance Company is liable to indemnify the insured with respect to the award, under Section 95 if the liability is limited, the extent of indemnification is limited to such liability. But it does not mean that without raising such a plea of without providing this fact, by merely saying so, the Tribunal (or the Court in appeal) would be justified in allowing and fixing such a limited liability of the Insurance Company. Since the onus of proving this fact lies upon the Insurance Company and the Insurance Company having failed to discharge such onus, the Tribunal and/or the Court would be justified in fastening the entire liability upon the Insurance Company." 13. Since the onus of proving this fact lies upon the Insurance Company and the Insurance Company having failed to discharge such onus, the Tribunal and/or the Court would be justified in fastening the entire liability upon the Insurance Company." 13. In the case of "Md Hyder Ali v. Laxmi Devi and Ors." (Supra), the Division Bench took the same view and held;-- "After hearing the arguments of the learned counsel for the parties, we Find ourselves in total disagreement with the view of the learned Single Judge as also the finding of the Tribunal and hold that, in the facts and circumstances of this case, it cannot be said that the liability of the Insurance Company was limited. Undoubtedly, the Insurance Company took up a specific plea in the written statement that in terms of the Motor Vehicles Act, 1939, it has a limited liability. The duty of the Insurance Company did not stop there. If it took the aforesaid specific plea to the aforesaid effect, its duty was to adduce evidence during the trial of the claim petition and to prove and establish, with reference to both oral statements of its witnesses and documents in its possession that its liability was limited. Merely saying that despite having itself taken the aforesaid plea, the onus of establishing and proving that the Insurance Company had the unlimited liability was upon the owner of the vehicles, is wholly untenable in law. It is a well established principle of law that the onus to provide the fact lies upon the party who raises and takes up a specific plea to that effect. 14. Their Lordships further observed:-- "In fact, there appears to be a patent contradiction in the judgment of the learned Single Judge. As we have noticed. the Insurance Company requested the learned Single Judge for an opportunity in terms of the Order 41, Rule 27 of the Civil Procedure Code to adduce additional evidence at the appellate stage by production of a copy of the Insurance Policy. The Judgment under appeal clearly informs us that the learned Single Judge refused such permission to the Insurance Company. the Insurance Company requested the learned Single Judge for an opportunity in terms of the Order 41, Rule 27 of the Civil Procedure Code to adduce additional evidence at the appellate stage by production of a copy of the Insurance Policy. The Judgment under appeal clearly informs us that the learned Single Judge refused such permission to the Insurance Company. After he had refused to allow the Insurance Company to adduce evidence in terms of Order 41 Rule 27 of the Civil Procedure Code, it is not understood as to how did the learned Single Judge to on to hold that the liability of the Insurance Company was limited. There thus appears to be a patent contradiction, on the one hand by refusing to allow the Insurance Company the opportunity to adduce additional evidence and, on the other, without there being any such document on record, to hold that the liability of the Insurance Company was limited." 15. In the instant case, as noticed above, the learned Single Judge considered the certificate of Insurance, copy of the insurance policy and the money receipts filed by the appellant Insurance Company and held that "there is no escape from holding that the respondent-Company is liable to indemnify the owner of the vehicle for the entire liability arising in respect of the claims by the public under the Act because of any accidental personal injury. "Inspite of said finding the learned Single Judge held that the Insurance Company is liable to pay the entire amount of compensation being Rs. 2,88,000/-, Relying upon the decision of Madhya Pradesh High Court. In the case of New India Assurance Co. Ltd. v. Nanak Chand Ben (Supra). In our view, there is patent contradiction in the judgment of the learned Single Judge. As noticed above, it was the specific case of the appellant/Insurance Company that its liability under Section 95 of the said Act and under the Insurance Policy was restricted to limited liability as contemplated under the Act. It is interesting to note that at no point of time the owner of the vehicle took a defence that the vehicle was covered with unlimited liability and under the policy the entire amount is payable by the Insurance Company. It is interesting to note that at no point of time the owner of the vehicle took a defence that the vehicle was covered with unlimited liability and under the policy the entire amount is payable by the Insurance Company. The only defence taken by the owner of the vehicle was that the vehicle was insured at the relevant time with the Oriental Insurance Company Ltd. bearing policy No. 33273/3/217/MV/4370/88/TP. 16. It is well settled that merely because the vehicle was comprehensively insured. It does not mean that the liability of the Insurance Company is unlimited. This point has been elaborately discussed by apex Court in the case of National Insurance Co. Ltd. v. Jugal Kishore and Ors. (1988) 1 SCC 626 . Their Lordships observed:-- "We have accordingly perused the photo-state copy of the policy to ascertain whether risk for any amount higher than the amount of Rs. 20,000 contemplated by Clause (b) aforesaid was covered. Our attention was invited by learned counsel for the respondents to the circumstances that at the right hand corner on the top of page 1 of the policy the words "Commercial Vehicle Comprehensive" were printed. On this basis and on the basis that the premium paid was higher than the premium of an "act only" policy it was urged by the learned counsel for the respondents that the liability of the appellant was unlimited and not confined to Rs. 20,000 only. We find it difficult to accept this submission. Even though it is not permissible to use a vehicle unless it is covered at least under an "act only" policy it is not obligatory for the owner of a vehicle to get it comprehensively insured. In case, however, it is got comprehensively insured a higher premium than for an "act only" policy is payable depending on the estimated value of the vehicle. Such insurance entitles the owner to claim reimbursement of the entire amount of loss or damage suffered up to the estimated value of the vehicle calculated according to the rules and regulations framed in this behalf. Comprehensive insurance of the vehicle and payment of higher premium on this score, however, do not mean that the limit of the liability with regard to third party risk becomes unlimited or higher than the statutory liability fixed under Sub-section (2) of Section 95 of the Act. Comprehensive insurance of the vehicle and payment of higher premium on this score, however, do not mean that the limit of the liability with regard to third party risk becomes unlimited or higher than the statutory liability fixed under Sub-section (2) of Section 95 of the Act. For this purpose a specific agreement has to be arrived at between the owner and the insurance company and separate premium has to be paid on the amount of liability undertaken by the insurance company in this behalf. Likewise, if risk of any other nature for instance, with regard to the driver or passengers etc. in excess of statutory liability if any. is sought to be covered it has to be clearly specified in the policy and separate premium paid thereof. This is the requirement of the tariff regulations framed for the purpose." 17. In the case of The Oriental Fire and General Insurance Company Ltd. v. Barun Kumar Pandey & Anr. 1989 BLJR 230 , a Bench of Patna High Court following the ratio decided by the Supreme Court held that the insurer cannot be bound to pay the entire liability merely because of the comprehensive insurance of the vehicle. 18. In the case of New India Assurance Co. Ltd. v. Ram Lal and Ors., (1988) ACJ 754 (SC), the Apex Court observed:-- "It is obvious from Section 95 (2) (a) of the Motor Vehicles Act. 1939, that the maximum liability of the appellant is Rs. 50,000/- under the said Act in respect of each death or injury caused by motor vehicle accident falling under that provision See Motor Owners Insurance Co. Ltd. v. Jadavji Keahavji Modi, 1981 ACJ 507 (SC). The insurance policy produced by the appellant shows that the appellant had undertaken to indemnify the insured to the extent of Rs. 50,000/-only. In the circumstances the High Court was in error in holding that the appellant was liable to pay the entire amount of compensation which was more than Rs. 50,000/- in this case on the basis that the policy was one under which the insurer had undertaken to bear an unlimited liability. The order passed by the High Court is, therefore, modified in so far as the appellant is concerned directing the appellant to pay a sum of Rs. 50,000/- in this case on the basis that the policy was one under which the insurer had undertaken to bear an unlimited liability. The order passed by the High Court is, therefore, modified in so far as the appellant is concerned directing the appellant to pay a sum of Rs. 50,000/-only to the claimant- respondents with Interest at the rate of 12 percent per annum from the date of the filing of the petition till the date of deposit. The appellant shall also pay the costs of the said claimants before the Motor Accidents Claims Tribunal. The appeal is accordingly allowed. There will be no order as to costs in this Court. Any compensation payable over and above Rs. 50,000/- shall be paid by respondent No. 1. Mr. Ram Lal (owner of the vehicle)." 19. In the case of New India Assurance Co. Ltd. v. Smt. Shanti Bai & Ors., AIR 1995 SC 1113 , the Supreme Court following the decision of "Jugal Kishore Case" (supra) observed:-- "In the present case, the premium which has been paid is at the rate of Rs. 12/- per passenger and is clearly referable to the statutory liability of fifteen thousand rupees per passenger under Section 95 (2) (b) (ii) of the Motor Vehicles Act. 1939. In the present case; there is no special contract between the appellant-Company and respondent No. 4 to cover unlimited liability in respect of an accident to a passenger. In the absence of such an express agreement, the policy covers only the statutory liability. The mere fact that the insurance policy is a comprehensive policy will not help the respondents in any manner. As pointed out by this Court in the case of National Insurance Co. Ltd. v. Jugal Kishore, AIR 1988 SC 719 (Supra), comprehensive policy only entitled the owner to claim reimbursement of the entire amount of loss or damage suffered up to the estimated value of the vehicle. It does not mean that the limit of liability with regard to third party risk becomes unlimited or higher than the statutory liability. For this purpose, a specific agreement is necessary which is absent in the present case. Reference in this connection may also be made to the case of M.K. Kunhimohammed v. P.A. Amhedkutty, (1987) 3 SCR 1149 : AIR 1987 SC 2157. For this purpose, a specific agreement is necessary which is absent in the present case. Reference in this connection may also be made to the case of M.K. Kunhimohammed v. P.A. Amhedkutty, (1987) 3 SCR 1149 : AIR 1987 SC 2157. The appellant-Company, is therefore, entitled to succeed to the extent that it has been directed to pay to respondents 1 to 3 any amount in excess of Rs. 15,000/-" 20. In the case of National Insurance Co. Ltd. v. Nathilal and Ors., (1999) 1 SCC 552 , while considering a similar question the Apex Court again following the ratio of "Jugal Kishore Case" held:-- "In the light of the above ratio laid down by this Court and in view of the fact that no extra premium was paid towards unlimited liability as is clear from the Policy produced before the Tribunal, the judgment and order of the Tribunal affirmed by the High Court cannot be sustained and are, accordingly, set aside. The liability of the Insurance Company is limited to Rs. 15,000/-. The award of the Tribunal will accordingly stand modified insofar as the liability of the appellant-Insurance Company is concerned." 21. In a recent judgment, a Bench of Five Honble Judges of the Apex Court while deciding a reference as to the extent of liability of the Insurance Company held as under:-- "It is also not the case that any additional or higher premium was paid to cover unlimited or higher liability than the statutory liability fixed as found in the term of the policy extracted above. In the light of the law stated above, it necessarily follows that the liability of the appellant is limited to Rs. 50,000/-, as was rightly held by the Tribunal. The High Court committed an error in taking the contrary view that the liability of the appellant was unlimited merely on the ground that the insured had taken a comprehensive policy. In Shanti Bais case, this Court has clearly expressed the opinion that a comprehensive policy issued on the basis of the estimated value of the vehicle does not automatically result in covering the liability with regard to third party risk for an amount higher than the statutory limit in the absence of specific agreement and payment of separate premium to cover third party risk for an amount higher than the statutory limit." 22. As noticed above, it was not the case of the owner of the vehicle that the vehicle was insured with unlimited liability. Rather it was the specific case of the Insurance Company that the vehicle was insured with a limited liability. The Tribunal therefore out of the total amount of compensation directed that the Insurance Company will pay a sum of Rs. 1,50,000/- which is that maximum statutory liability of the Insurance Company. Learned Single Judge in the impugned Judgment has held that in the policy, the Company had undertaken to indemnify the owner of such amount as is necessary to meet the requirements of Motor Vehicles Act, 1939. The learned Single Judge further held that "there is no escape from holding that respondent-Insurance Company is liable to indemnify the owner of the vehicle for the entire liability arising in respect of the claims by the public under the Act because of any accidental personal injury." However, learned Single Judge has erred in law in relying upon the ratio decided by the Karnataka High Court in Sundaram Finance Ltd. case (Supra) and not correctly appreciating the ratio decided by the Supreme Court in the case of National Insurance Co. Ltd. v. Jugal Kishore and Ors., (Supra). Taking into consideration the policy of insurance and the law laid down by the Supreme Court, we have no justification in holding that the liability of the Insurance Company was limited under the policy and the tribunal has rightly held that out of the total compensation the Insurance Company will pay Rs. 1,50,000/-which is maximum statutory liability. 23. This appeal is therefore, allowed and the Judgment passed by the learned Single Judge is set aside. Accordingly, the judgment and award passed by the Motor Accident Claims Tribunal is restored.