Judgment Permod Kohli, J. 1. All these appeals bearing F. A. O. Nos.4927 of 2006, 5060 of 2006 and 5061 of 2006, preferred by owner of the offending vehicle arise out of awards dated 22nd July, 2006, passed by the Motor Accident Claims Tribunal, rupnangar in M. A. C. T. Nos.43 of 2005, 44 of 2004 and 101 of 2004, out of the same accident. 2. From the impugned awards, following facts have emerged: 3. On 21st September, 2004, One Ram sharma, his wife Smt. Geeta Sharma and her niece Pooja Sharma, were riding a scooter bearing registration No. P. B.32-4019. They were coming from Banga to Nurpur Bedi and were followed by Sham Sharma and Jatinder sharma on a motor cycle. At about 4.30 p. m. when they reached in the revenue limits of nalhoti, Tehsil Anandpur Sahib, on Nurpur bedi, Garhshanker road, one Tata Tempo bearing registration No. P. B.-12b-5346 came from Garhshanker side, which was driven by respondent No.2 in a rash and negligent manner and at a high speed. The said Tempo hit the scooter from back side after taking pass from sham Sharmas motor cycle. As a result, ram Sharma, Smt. Geeta Sharma and Pooja sharma fell on the pucca road and the offending tempo crushed them all. They died at the spot. It was alleged that the accident had taken place due to the rash and negligent driving of respondent No.2. An F. I. R. bearing registration No.56 was registered on the same day i. e.21st September , 2004, under sections 304-A, 427 of I. P. C. at Police Station, nurpur Bedi. The offending vehicles owned by the present appellant. 4. Three claim petitions have been preferred by LRs of Ram Sharma, LRs of smt. Geeta Sharma and mother and father of pooja Sharma. 5. The Insurance Company i. e. New India assurance Company, herein denied its liability on the ground that the driver of the offending vehicle was not holding a valid and effective driving license at the time of accident. It also denied the accident etc. though, it was admitted that the vehicle in question was insured with it. 6. The Motor Accident Claims Tribunal framed following specific issue. "whether at the time of accident, respondent No.2 was not holding a valid and effective driving license? If so its effect? It also denied the accident etc. though, it was admitted that the vehicle in question was insured with it. 6. The Motor Accident Claims Tribunal framed following specific issue. "whether at the time of accident, respondent No.2 was not holding a valid and effective driving license? If so its effect? O. P. R.-3" Other issues were also framed regarding entitlement of the claimants for compensation and the factum of accident etc. On the basis of evidence led, the Claim Tribunal ruled that the accident was caused by the driver of the offending vehicle due to rash and negligent driving. Thetribunal also found the entitlement of the claimants for compensation and assessed and determined the compensation in each case. The quantum of compensation etc. is not material for purposes of the present appeals. 7. The Motor Accident Claims Tribunal, while deciding issue No.2 returned a finding that the driver was not having a valid driving license. It, accordingly, directed the payment of compensation firstly by the Insurance company with a liberty to recover the same from the owner of the vehicle. The appellant owner is aggrieved by the direction of the tribunal, where underthe appellant has been made liable to disburse the amount of compensation to the Insurance Company under the Awards. 8. As far the findings recorded by the tribunal on Issue No.2 is concerned, the appellant has not been able to dispute the same. The offending vehicle was being driven by Baldev Singh driver, a copy of his license was produced before the Tribunal as Ext. R-4. Validity of this license was shown up to 13th september 2014, and was allegedly issued on 21st June, 2003. Therefore, this driving license was valid at the time of accident. The Insurance company summoned the record from the office of A. R. T. O. , Muzafarnagar, who is allegedly the Licensing Authority of License no. B4028, a copy where of was produced before the learned Tribunal. Vikas Gaur, Junior clerk from the office of A. R. T. O. Muzafarnagar, produced the record and submitted his report that the driving license No. B-4028 was issued by the Licensing Authority (A. R. T. O.), muzafarnagar, to one Babu Ram son of Mahavir singh of Village Sonta, P. O. Mansrpur, District muzafarnagar, for motor cycle, L. M. V. , NT. Under this number of license, no license was ever issued to Baldev Singh. Under this number of license, no license was ever issued to Baldev Singh. On the basis of this evidence, learned Tribunal arrived at a finding that the driver was not holding a valid driving license and rightly so. The learned tribunal also held that the driver of the offending vehicle has not appeared as a witness, nor owner has appeared so as to explain that either the driver had any other valid license or the driving license was not fundamental to the cause of accident. The Tribunal, accordingly, directed the Insurance Company to pay the compensation and recover the same from the owner. 9. I have heard the learned Counsel for the parties and carefully perused the impugned awards and also the record of the case. 10. It is true that neither the driver has appeared as a witness nor the owner of the offending vehicle, though owner appeared, contested the claim petition through his attorney. The attorney has also appeared in the witness box and made his statement. It may be relevant to refer to the statement of the attorney. 11. Avtar Singh R. W.1 is the attorney of the owner. Relevant portion of his cross-examination is as under: "baldev Singh is employed by Sant Baba labh Singh in my presence about 4 years back. Before his employment, his driving try was taken. We had verified the D. L. of Baldev Singh, I cannot tell whether Ext. R-1 is the copy of D. L. of baldev Singh, which was produced by him through Counsel. Again said, it is the same D. L. which was produced/ shown to us by Baldev Singh. I have not brought the verification of D. L. today. I cannot produce the same. But can produce the same if the Court asks if requires" 12. Learned Counsel appearing for the insurance Company, while referring to the judgment of the Apex Court reported in Janki vashdeo Bhajwani and another V/s. Indusind bank Ltd. and others, (2005-2) 140 p. L. R.1 (SC ). argued that the statement of the attorney cannot help the appellant-owner and the attorney cannot make such a statement regarding employment of the driver by the appellant. He has particularly relied upon the following observations: "order III, Rules 1 and 2, C. P. C. , empowers the holder of power of attorney to "act" on behalf of the principal. argued that the statement of the attorney cannot help the appellant-owner and the attorney cannot make such a statement regarding employment of the driver by the appellant. He has particularly relied upon the following observations: "order III, Rules 1 and 2, C. P. C. , empowers the holder of power of attorney to "act" on behalf of the principal. In our view the word "acts" employed in order iii, Rules 1 and 2, C. P. C. , confines only in respect of "acts" done by the power of attorney holder in exercise of power granted by the instrument. The term "acts would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some "acts" in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined. " 13. It, accordingly, argued that attorneys statement cannot be taken note of. The aforesaid judgment and the observations of the Hon ble Apex Court clearly indicate that the attorney cannot depose regarding the fact, which is not in his knowledge orto which he is not privy, but does exclude reliability, authenticity and validity of the statement of the attorney relating to a fact, which is in his personal knowledge and to which he may be privy or a party. Rather, the judgment clearly says if attorney has the personal knowledge of an act done by him he can depose. In the present case, the statement of attorney becomes significant. The attorney has clearly made a statement thatthe driverwas employed in his presence. Before the grant of employment, his driving test was taken and he verified the driving license of the driver. Here is a person, who has personal and direct knowledge of the factum of employment of the driver and the driving test allegedly taken at the time of his employment. Before the grant of employment, his driving test was taken and he verified the driving license of the driver. Here is a person, who has personal and direct knowledge of the factum of employment of the driver and the driving test allegedly taken at the time of his employment. He has not been cross-examined on this aspect and nothing has been brought to my notice that the statement made by the attorney has been rebutted by the Insurance Company by any cogent evidence or veracity of his statement should not be believed on account of any fact which has been brought out during his cross-examination. Therefore, the aforesaid judgment will not come to the rescue of the insurance Company. It may also be useful to refer to some of the judgments on question of liability either of the owner or the insured under similar circumstances. 14. In Skandia Insurance Co. Ltd. V/s. Kokilaben Chandravadan, (1987)-1) 91 P. LR.665 = 1987 (1) TAC 471 (SC ). the Apex Court noted as under: "the defence built on the exclusion clause cannot succeed forthree reasons viz: (1) On atrue interpretation of the relevant clause which interpretation is at peace with the conscience of Sec.96, the condition excluding driving by a person not duly licensed is not absolute and the promisor is absolved once it is shown that he has done everything in his power to keep, honour and fulfil the promise and he himself is not guilty of a deliberate breach. (2) Even if it is treated as an absolute promise there is substantial compliance therewith upon an express or implied mandata being given to the licensed driver not to allow the vehicle to be left unattended so that it happens to be driven by an unlicensed driver. (3) The express clause has to be read down in order that it is not at war with the main purpose of the provisions enacted for the protection of victims of accidents so that the promisor is exculpated when he does everything in his power to keep the promise. " 15. In United India Insurance Co. Ltd. V/s. Lehru and others, 2003 (1) An. W. R.588 (SC) = (2003-2) 134 P. L. R.124 = 2003 (2)TAC 1 (SC ). it was observed as under: "when an owner is hiring a driver he will therefore have to check whether the driver has a driving license. " 15. In United India Insurance Co. Ltd. V/s. Lehru and others, 2003 (1) An. W. R.588 (SC) = (2003-2) 134 P. L. R.124 = 2003 (2)TAC 1 (SC ). it was observed as under: "when an owner is hiring a driver he will therefore have to check whether the driver has a driving license. If the driver produces a driving licence which on the face of it looks genuine, the owner is not expected to find out whether the licence has in fact been issued by a competent authority or not. The owner would then take the test of the driver. If he finds that the driver is competent to drive the vehicle, he will hire the driver. We find it rather strange that Insuranee Companies expect owners to make enquiries with r. T. O. s which are spread all over the country, whether the driving licence shown to them is valid or not. Thus, where the owner has satisfied himself that the driver has a licence and is driving competently, there would be no breach of Sec.139 (2) (a) (ii ). The insurance Company would not then be absolved of liability. If it ultimately turns out that the licence was fake, Insurance company would continue to remain liable unless they prove that the owner/insured was aware or had noticed that the licence was fake and still permitted that person to drive. More importantly, even in such a case the Insurance Company would remain liable to the innocent third person, but it may be able to recover from the insured. " 16. In National Insurance Co. Ltd. V/s. Swaran singh, 2004 (2) ALT 13.2, 14.3, 14.4 (DN SC) = (2004-1) 136 P. LR.510 = 2004 (1)TAC 321 (SC) the Hon ble Supreme Court considered the entire scheme of the Motor Vehicles Act and the scope and purport of Sec.149 (2) (a) (ii) of the Motor Vehicles Act, 1988 and held as under: (iii) The breach of policy condition e. g. , disqualification of driver or invalid driving licence of the driver as contained in sub-sec. 149, have to be proved to have been "committed by the insured for avoiding its liability by the insurer. Mere absence, fakeor invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defence available to the insurer against either the insured or the third parties. 149, have to be proved to have been "committed by the insured for avoiding its liability by the insurer. Mere absence, fakeor invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defence available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insurer was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the conditions of the policy regarding use of vehicles by duly license driver or one who was not disqualified to drive at the relevant time. (iv) The Insurance Companies, are, however, with a view to avoid their liability must not only establish the available defence (s) raised in the said proceedings but must also establish breach on the part of the owner of the vehicle, the burden of proof wherefore would be on them. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid driving licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. Thetribunal in interpretating the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defence available to the insured under Sec.149 (2) of the Act". In Lal Chand V/s. Oriental Insurance Co. Ltd. , (2006-3) 144 PLR 741 (SC ). it was observed that: "in the instant case, the owner has not only seen and examined the driving licence produced by the driver but also took the test of the driving of the driver and found that the driver was competent to drive the vehicle and thereafter appointed him as driver of the vehicle in question. Thus, the owner having satisfied himself that the driver had a licence and was driving competently there would be no breach of Sec.149 (2) (a) (ii) and the Insurance Company would not then be absolved of its liability. " 17. Thus, the owner having satisfied himself that the driver had a licence and was driving competently there would be no breach of Sec.149 (2) (a) (ii) and the Insurance Company would not then be absolved of its liability. " 17. After the above observations, the Hon ble Apex Court relied upon the observations made by the three-Judge Bench of the Supreme Court in case of National insurance Co. Ltd. V/s. Swaran Singh and others (supra), wherein the following observations have been made: "108. (iii) The breach of policy condition e. g. Disqualification of the driver, invalid driving licence of the driver, as contained in sub-section (2) (a) (ii) of Sec.149, has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licensed driver or one who was to disqualified to drive at the relevant time". And consequently held as under: "11. As observed in the above paragraph, the insurer, namely the Insurance company, has to prove that the insured, namely, the owner of the vehicle, was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant point of time. " 18. In the impugned Award, the Tribunal, though noticed some of the above judgments, but held that fake licence is fundamental to the cause of the accident. In my opinion, the tribunal has ignored the statement of attorney at all on the ground that the owner has not appeared in the witness box nor the driver has been produced. But, it failed to consider the unrebutted statement of the attorney, who was privy to the engagement of the driver and also specifically stated that the driver was subjected to a driving test before his engagement and his driving licence was also verified. But, it failed to consider the unrebutted statement of the attorney, who was privy to the engagement of the driver and also specifically stated that the driver was subjected to a driving test before his engagement and his driving licence was also verified. This is the only requirement of law. An employer before acquiring services of a driver can only satisfy himself only on examination of the driving licence and by subjecting the driver to the driving test to his satisfaction. The owner or the employer has no means to find out that the driving licence is fake. 19. In the instant case, the appellant-owner did discharge his obligation under the insurance policy of satisfying himself regarding driving skill of the driver and the fact that he is holding a driving licence, which is enough. Nothing, more was required on his part. He cannot be held to be guilty of breach of the policy. In any case, no evidence has been led by the Insurance Company to show that the owner was negligent or guilty of wilful breach of the Insurance Policy. The Tribunal has only drawn an inferencefromthe evidence produced by the Insurance Company that the driver was not holding a valid driving licence. To establish breach, there has to be evidence in affirmative form and mere inference cannot be substitute for the positive evidence to establish breach. In view of my above discussion and the reasonings, these appeals are allowed. The impugned awards are hereby set aside to the extentthe Insurance Company has been given the right to recover compensation amount from the appellant. Consequently, liability to pay the compensation is fastened exclusively on the Insurance Company. No order as to costs.