DEEPAK GUPTA, J.

(1.) Ved Prakash, a boy aged 19 years who was a student of class X was riding his bicycle on 29.4.1992. At about 8 a.m. he reached bus stand, Pandoh. A Maruti van No. HPY 1334 was parked on the left side of the road. While Ved Prakash was passing by the side of the van, the driver of this van, respondent No. 6, suddenly opened the door of the van and hit the deceased. Due to this impact the cyclist swerved towards right side and he was knocked down by the oil tanker No. HPA 6489 which was coming from the opposite side. Ved Prakash suffered serious injuries. He was firstly taken to the District Hospital, Mandi and then referred to the PGI, Chandigarh. He succumbed to his injuries on 30.4.1992.

(2.) The claimants, respondent Nos. 1 and 2, parents of Ved Prakash deceased filed a claim petition for grant of compensation under section 166 of the Motor Vehicles Act, 1988. Both the vehicles were insured with Oriental Insurance Co. Ltd. The driver of the oil tanker, respondent No. 4, herein filed a reply to the petition denying the accident and took up the plea that his tanker was not involved in the accident and in fact he reached at the site much later. Driver of the van, respondent No. 6, tried to shift the blame to the deceased himself and it was averred that the deceased had hit the oil tanker while negligently riding his bicycle.

(3.) The appellant, insurance company, took up the plea that the vehicles in question were being driven by unlicensed and unauthorised persons the liability of which was not covered under the policy of insurance. Both the owners, i.e., respondent Nos. 3 and 5 did not care to file reply to the petition. The owner of the tanker, respondent No. 3, was served but proceeded exparte by the Tribunal on 22.6.1993. The owner of the van, respondent No. 5 herein, stated that he did not want to file independent reply and adopt the reply filed by his driver, respondent No. 4.

(4.) On the pleadings of the parties, the following issues were framed by learned Tribunal on 12.9.1994: (1) Whether the accident in question occurred due to rash and negligent driving of Maruti van and oil tanker by their respective drivers and Ved Prakash died in the said accident as alleged OPP (2) Whether petitioners are entitled to compensation for the death of Ved Prakash, if so, how much and from whom OPP (3) Whether at the time of the accident the vehicle in question was being driven by unlicensed and unauthorised person as alleged in preliminary objection No. 1 of the reply, if so its effect OPP (4) Relief.

(5.) Thereafter, evidence was recorded. During the course of proceedings the insurance company filed two applications under Order 11, rule 14 read with section 151, Civil Procedure Code. In the first application it was stated that the driver of the tanker had supplied certain particulars in respect of his driving licence and on investigation it was found that this licence was not issued by the D.T.O. Office, Kamrup, Ullubari, Guwahati (Assam). It was, therefore, prayed that owner, respondent No. 1 and driver, respondent No. 2, be directed to produce the original driving licence of Karnail Singh. It would be pertinent tc mention that so far as the owner and driver of the oil tanker are concerned they did not care to file the reply to this application. In the second application, the insurance company submitted that the driving licence of the van had been given to it by the driver. On verification, it was found that no such licence was issued by the Registering and Licensing Authority, Nahan, from where the said licence purported to have been issued. The driver of the van did not also file the reply to this application. Respondent No. 3 took up the plea that he had never supplied the particulars of his licence to the insurance company and that the respondent No. 4 has left his job and, therefore, he was not in a position to supply the driving licence of the driver of the van.

(6.) Claimants led evidence. The owners and the drivers of the two vehicles did not appear in the witness-box. It would be pertinent to mention that in the trial court the driver of the van was served through the owner at the address of the owner. The owner when he put in appearance adopted the reply filed by the driver of the van. However, when summons were sent to the driver of the van c/o the owner Madan Lal Sharma, he in his own handwriting wrote on the summons that no such person was employed by him nor he knew such driver and he has no knowledge about the case.

(7.) One very novel and surprising thing happened during the course of the evidence. The counsel appearing on behalf of the driver of the tanker himself appeared as witness as RW 1 and stated that he is the counsel of driver Karnail Singh. He produced the photocopy of the driving licence which he claimed to have attested. This driving licence of Karnail Singh, driver of the oil tanker was exhibited as Exh. RA. Similarly counsel for the driver of the van appeared in the witness-box as RW 2. He made a similar statement and he also produced the photocopy of the alleged driving licence of Randhir Singh. This was marked as RW 2/A. It is very astonishing that the counsel for the parties have appeared as witnesses. Such conduct is not expected from the advocates. The Bar Council of India has framed the rules known as the Bar Council of India Rules, 1975, pursuant to the powers vested in it by the Advocates Act, 1961. Part 6 of these Rules governs the advocates. Chapter II of Part 6 lays down the standard of conduct and etiquette required of the advocates. The rule 13 of section 2, Chapter 11 reads as follows:

"An advocate should not accept a brief or appear in a case in which he has reason to believe that he will be a witness and if being engaged in a case, it becomes apparent that he is a witness on a material question of fact, he should not continue to appear as an advocate if he can retire without jeopardizing his clients interests."

(8.) It is thus clear that a lawyer is expected not even to accept the brief or appear in a case he has reason to believe that he may be called as a witness. In the present case, the lawyers themselves appeared as witnesses. This is not expected of lawyers. Even when they appeared as witnesses they only produced before the court photocopies of the documents. The original driving licences were never produced. The Claims Tribunal has also been very negligent and has wrongly exhibited the said documents. These photocopies of the so called driving licence could not be accepted in evidence without production of the original.

(9.) This court in National Insurance Co. Ltd. v. Bimla Devi, 2006 ACJ 402 (HP), held as follows:

"(7) It is a cardinal, basic and established principle of evidence law that the documents, other than public documents are tendered in evidence through witnesses who after taking oath prove the documents appropriately as well as the contents of the documents, by way of leading direct evidence. Actually the documents are produced and proved through witnesses and their contents also established and proved either by way of primary evidence or secondary evidence but in any event the established and accepted mode of proving documents is by production of witnesses in the court who testify about the correctness, genuineness and authenticity of the documents as well as their contents, mostly through the medium of proving them as and by way of primary evidence and in certain given situations through the medium of secondary evidence. The purpose of course is two-fold; firstly, that such witness appearing in the court is sworn and under oath testifies about a particular document, its genuineness and authenticity as well as its correctness and secondly once under oath and examination, this witness is subjected to the cross-examination by the opposite party so that the opposite party through the mechanism of cross-examination of such a witness can elicit the appropriate information concerning the document itself with respect to its veracity, truthfulness, background, correctness, etc. Enough indication of such requirement of law is found in section 62 of the Evidence Act which refers to the documents as primary evidence and clearly suggests that such documents can be produced for the inspection of the court meaning thereby that through witnesses alone the documents have to be brought on record of the courts. Similarly under section 63 of the Evidence Act, secondary evidence has been defined and reading together these two sections, it can be safely said that documents either by way of primary evidence or by way of secondary evidence or otherwise have to be appropriately and properly proved by their production in the courts through witnesses alone."

(10.) In view of the above statement of law the so-called photocopies of the driving licences have wrongly been admitted in evidence and exhibited as Exhs. RA and RW 2/A. These documents cannot be read in evidence.

(11.) The insurance company has produced in evidence Satinder Thakur, Motor Licensing Clerk of the Motor Licensing Authority, Nahan, RW 3. He has proved that the so called driving licence Exh. RW 2/A was not issued by Licensing Authority, Nahan.

(12.) Sant Ram, Licensing Clerk, office of the Motor Registering and Licensing Authority, Sundernagar, RW 4, has stated that even the endorsement marked as Exh. RX on the said licence was not made by their office.

(13.) B.S. Guleria, Assistant Administrative Officer of Oriental Insurance Co. Ltd., RW 5, has stated that on investigation, it was found that the licence issued in favour of the driver of the oil tanker was fake. Thereafter, the insurance company moved another application for appointment of Commissioner to examine the Motor Licensing Clerk from the office of Licensing Authority, Jagadhari, Haryana. This witness when examined has stated that the renewal of the licence of Karnail Singh, driver of the oil tanker, had not been made by the Registering and Licensing Authority, Jagadhari. Similarly, Isham Singh, Motor Licensing Clerk, Karnal, stated that the driving licence of Karnail Singh was not renewed in their office.

(14.) The learned Tribunal has held that it stands proved on record that the employer had employed the drivers after seeing their licences and they were renewed from time to time and, therefore, the owner cannot be held responsible and the insurance company must be held liable. The Tribunal finally passed an award of Rs. 1,23,000 and fixed the liability fifty-fifty on both the drivers and owners of the vehicles. Since both the vehicles were insured with Oriental Insurance Co. Ltd., the liability was fixed on all the respondents and the insurance company was held liable to pay the amount of compensation.

(15.) Mr. Ashwani Kumar Sharma, learned counsel for the insurance company, has contended that the findings of the Tribunal that the owners had employed the drivers after seeing their licences is not borne out from the record. According to him at least the owners must show that they had seen the licences.

(16.) On the other hand, Mr. Ankush Dass Sood, learned counsel appearing on behalf of respondent No. 5, the owner of the van, has contended that the burden of proof and onus of proof is totally on the insurance company to prove that the owner has knowingly, wilfully and negligently handed over the vehicle knowing that such person did not have a driving licence.

(17.) Mr. Ankush Dass Sood, learned counsel, has relied upon the judgment of the Apex Court in Narcinva V. Kamat v. Alfredo Antonio Doe Martins, (1985) SCC 374: 1985 ACJ 397 (SC), wherein it has been observed as under:

"The insured is under no obligation to furnish evidence so as to enable the insurance company to wriggle out of its liability under the contract of insurance. The burden is not discharged on mere failure on the part of the partner of the firm who was driving the vehicle to produce the driving licence when called upon to do so in the cross-examination. Thereby one cannot draw an adverse inference that he did not have a valid licence. The insurance company should have got evidence to substantiate its allegation. Applying the test who would fail if no evidence is led, the obvious answer is the insurance company."

(18.) In Kashiram Yadav v. Oriental Fire and General Ins. Co. Ltd., 1989 ACJ 1078 (SC), the Apex Court has held that when the insured has done everything within his power inasmuch as he has engaged the licensed driver and has placed the vehicle in his charge with the express or implied mandate to drive himself, it cannot be said that the insured is guilty of any breach. In the facts of that case, the court held as under:

"(7) But in the present case, the onus of the insurer has been discharged from the evidence of the insured himself. The insured took a positive defence stating that he was not the owner of the vehicle since he had already sold the same to a third party. This has not been proved. Secondly, he took a defence stating that the vehicle at the relevant time was driven by a licensed driver, Gaya Prasad, PW 2. This was proved to be false. There is no other material even to indicate that the vehicle was entrusted to the licensed driver on the date of the fatal accident. With these distinguishing features in the present case, we do not think that ratio of the decision in Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan, 1987 ACJ 411 (SC), could be called to aid the appellants."

(19.) In Sohan Lal Passi v. P. Sesh Reddy, 1996 ACJ 1044 (SC), the owner had handed over the bus to the duly licensed driver and the driver allowed the cleaner/conductor to drive the same without the authority of the owner. It was held that there was no breach on the part of the owner and the insurance company was liable.

(20.) In United India Insurance Co. Ltd. v. Gian Chand, 1997 ACJ 1065 (SC), the Apex Court held as follows:

"(10) ...It has been clearly held by the Tribunal as well as by the High Court that respondent No. 1 who was permitted to drive the vehicle by respondent No. 9, the insured, was admittedly not having any driving licence. It was not the case of respondent No. 9, the insured, that he did not know that respondent No. 1, whom the vehicle was being handed over, was not having a valid licence. In fact, once he did not step in the witness- box to prove his case, an adverse inference had necessarily to be drawn against him to the effect that vehicle had been handed over by him for being driven by an unlicensed driver, respondent No. 1. That finding reached by the Claims Tribunal as well as by the High Court must result in exonerating the insurance company of its obligation as the statutory defence became available to it. The High Court, even though agreeing with the finding of fact reached by the Tribunal, has in our view, by misconstruing the ratio of the decision of this court in Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan, 1987 ACJ 411 (SC), erroneously held that the said defence was not available to the insurance company on the facts of the present case. Even that apart, a Bench of three learned Judges of this court in Sohan Lal Passi v. P. Sesh Reddy, 1996 ACJ 1044 (SC), while upholding the ratio of the decision of this court in Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan (supra), has also taken the same view."

(21.) In United India Insurance Co. Ltd. v. Lehru, 2003 ACJ 611 (SC), the Apex Court has held that in order to avoid liability under section 149 (2) (a) (ii) it must be shown that there was a breach on the part of the insured.

(22.) All the aforementioned judgments as well as various other judgments rendered by the High Courts were considered by a three-member Bench of the Supreme Court in National Insurance Co. Ltd. v. Swaran Singh, 2004 ACJ 1 (SC). Dealing with the question of driving licence found to be fake, the Supreme Court in para 85 observed as follows:

"It may be true as has been contended on behalf of the petitioner that a fake or forged licence is as good as no licence but the question herein, as noticed hereinbefore, is whether the insurer must prove that the owner was guilty of wilful breach of the conditions of the insurance policy or the contract of insurance. In Lehrus case, 2003 ACJ 611 (SC), the matter has been considered in some details. We are in general agreement with the approach of the Bench but we intend to point out that the observations made therein must be understood to have been made in the light of the requirements of law in terms whereof the insurer is to establish wilful breach on the part of the insured and not for the purpose of its disentitlement from raising any defence or the owners be absolved from any liability whatsoever. We would be dealing in some details with this aspect of the matter a little later."

The court gave summary of its findings in para 102. The findings are as follows:

"(iii) The breach of policy conditions, e.g., disqualification of driver or invalid driving licence of the driver, as contained in sub-section (2) (a) (ii) of section 149, have 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 duly licensed 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 wherefor would be on them. (v) The court cannot lay down any criteria as to how the said burden would be discharged, inasmuch as the same would depend upon the facts and circumstances of each case. (vi) *** *** *** (vii) The question, as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case."

(23.) The law by now is well settled that the burden of proving the breach of the policy is on the insurance company. It is the insurance company which must prove that the owner knowingly breached the terms of the policy.

(24.) On the other hand, the Apex Court in Swaran Singhs case, 2004 ACJ 1 (SC), has also clearly stated that the question whether the owner has taken reasonable care to find out whether the driving licence produced by the driver does fulfil the requirement of law or not will have to be determined in each case.

(25.) It is well established rule of evidence that no party can be expected to lead evidence to prove the negative. The insurance company cannot be expected to know what the owner of the vehicle has done. It is the owner alone who can come and state in court that he had seen the original driving licence of the driver. The driving licence may be fake but it must ostensibly permit the said driver to drive a class of vehicle which the owner may allow him to do. It is impossible for the insurance company to lead evidence that the owner had not seen the driving licence. This is a matter solely in the knowledge of the owner and driver. They alone can prove this fact.

(26.) In the present case, both the owners were first proceeded ex parte. The owner of the tanker neither filed the reply nor appeared in the witness-box. As far as the owner of the van is concerned, he later on appeared and then adopted the reply filed by his driver. Both the owners did not file reply to the application nor furnished the particulars regarding the driving licence of their driver even when specifically asked to do so by the insurance company by filing application under the provisions of Order 11, rule 14 read with section 151, Civil Procedure Code. Insurance company could not have done anything else. It was for the owners to either supply the particulars of the driving licence or to have stepped into the witness-box and state that they had verified or at least seen the driving licence of their respective driver. In fact in the present case, the owner of the van who adopted the reply of his driver before the Tribunal has in response to summons sent from this court, in his own handwriting made a statement that he does not know such driver and he had never employed such person and he is not at all concerned with the case.

(27.) It is true that the Motor Vehicles Act is a beneficial piece of legislation and should be construed liberally. However, the liberal construction should be for the benefit of the claimants. The insured himself should at least have a modicum of respect for the court and should respond to the summons and step into the witness-box to say that he has performed that part of his duty which is required of him under section 5 of the Motor Vehicles Act. Under section 5, the owner is to ensure that the vehicle is handed over to a person who holds a valid and effective driving licence.

(28.) The owners of both the tanker and van have not done this in the present case. There is nothing on the record to show whether the driver has a valid driving licence or not.

(29.) As discussed above the photocopies of the alleged driving licences Exhs. RA and RW 2/A could not have been exhibited and admitted in evidence since they were only produced by the counsel without showing the originals thereof. Thus, there is nothing on the record to show that the drivers had any licence (valid, fake or otherwise). In view of the facts of the present case, I am of the considered opinion that the insurance company had discharged the initial burden which was cast upon it and thereafter the onus had shifted upon the owners. The owners of the vehicles have failed to discharge this onus and, therefore, I am constrained to hold in the present case that the insurance company cannot be held liable to pay compensation.

(30.) In view of the decision of Honble Supreme Court in National Insurance Co. Ltd. v. Swaran Singh, 2004 ACJ 1 (SC) and New India Assurance Co. Ltd. v. Kamla, 2001 ACJ 843 (SC) and National Insurance Co. Ltd. v. Baljit Kaur, 2004 ACJ 428 (SC), the insurance company is directed to deposit the awarded amount. However, the insurance company will be at liberty and shall be entitled to recover the entire amount from owners of the vehicles by filing an execution petition under the provisions of Motor Vehicles Act itself against the said owners without taking recourse to any other legal proceedings. The appeal is accordingly allowed in the aforesaid terms with no order as to costs. Appeal allowed.