JUDGMENT
P.D. Desai, C.J.
1. The appellants are the parents of a boy, aged about 16, who met with a fatal accident on March 3, 1985 at about 8-30 A.M. on the Palampur Lahla Road near village Gharthoon, Tehsil Palampur, when the truck (HPK-4279) owned by the first respondent and driven at the material time by the second respondent rolled down in a khud. The appellants instituted a claim petition against the respondents before the Motor Accident Claims Tribunal (I), Kangra at Dharamsala, Under Section 110-A of the Motor Vehicles Act, 1939 (hereinafter referred to as “the Act”) and claimed compensation in the sum of Rs. 92,000/-. The claim petition was returned to the appellants for presentation to the proper court on the ground that the Tribunal had no jurisdiction to entertain and try the same. Hence the present appeal.
2. The case of the appellants was that on March 3, 1985 the Prime Minister was to address an election meeting in the campus of the Himachal Pradesh Krishi Vishwa Vidyalaya, Palampur. The vehicle in question was requisitioned by One Brij Behari Lal Butail (respondent No. 3 whose name has been ordered to be struck off vide order of the day passed separately), who was a contesting candidate at the election, for the purposes of carrying members of the public to the site of the meeting. The deceased, alongwith others, was given a lift in the vehicle from village Hangloh (Lahla) and he was travelling therein when it reached village Gharthoon. The second respondent halted the vehicle there for picking up some more persons. He parked the vehicle on a katcha danga on the shoulder of the road although on the opposite side there was sufficient space to park the same on the road itself. The katcha danga gave way since it could not sustain the load of the vehicle. The vehicle rolled down in a khud and the deceased, who was crushed under the vehicle, met with instantaneous death. According to the appellants, the cause of the accident was the negligent act on the part of the second respondent during the course of his employment with the first respondent in parking the vehicle on a dang l oaths-katcha portion of the road without taking proper care and precaution and without ascertaining and verifying whether the said danga could have taken the load of the vehicle which was carrying so many passengers.
3. The case of the first and second respondents on the other hand was that the vehicle was not carrying any passenger(s) as alleged and that it was, in fact, parked at or near the site of the accident in the course of the transport business. The road on the spot was in a good condition and no patent defect was visible. Meanwhile, a few persons, who wanted to get into the vehicle in order to be carried to Palampur for attending the election meeting, made forcible entry despite the refusal of the second respondent to carry them. The road thereupon sagged at the place where the vehicle was parked and as a result thereof the vehicle rolled down and fell into the khud.
4. The case of the fourth respondent-Insurance Company was that the accident did not take place in the manner alleged by the appellants and that the deceased being a gratuitous passenger no liability to satisfy the award could be fixed on the said respondent.
5. The Motor Accident Claims Tribunal, as stated earlier, returned the petition for presentation to the proper Court. The Tribunal found that it was established that the second respondent had allowed some persons to board the vehicle while on its way from Lahla to Palampur and that he had parked the same on the wrong side of the road at the site of the accident. It was further found that these facts “tantamount to two elements of negligence on his part”. However, according to the Tribunal, those two elements of negligence could not be regarded as “solely responsible” for the accident in view of the fact that it was not established that the vehicle came to be parked on the vulnerable portion of the road despite the defect therein having been noticed by the second respondent The Tribunal’s view was tha the katcha danga where the vehicle was admittedly parked formed part of the Lahla Palampur main vehicular road which was laid and was being maintained by the State Government and that the defect, if any, in that portion of the road was latent and not patent and that the second respondent despite exercise of reasonable care and caution could not have detected such latent defect. Since the Public Works Department of the State Government was responsible for maintaining the road in a good and perfect condition and had failed so to do, it was “also responsible for having contributed for the negligence to the accident in question. “The State Government was, however, not joined as a party, although it was a necessary party and, therefore, no effective award could be passed in the present proceeding. Besides, the liability for payment of compensation in whole or part could not be fastened on the State Government for such negligence in a proceeding Under Section 110-A of the Act. There was thus no jurisdiction in the Tribunal to entertain and try the petition. On account of the purported lack of jurisdiction, the Tribunal even declined to make an award for compensation Under Section 92-A of the Act on the basis of no-fault liability.
6. The following facts are no longer in dispute:
(1) The vehicle is owned by the first respondent and was being driven at the material time by the second respondent and it is insured with the fourth respondent.
(2) The vehicle was proceeding from village Lahla to Praur on the Palampur Lahla Road on the day in question.
(3) The accident took place near village Gharthoon and at that time the vehicle was parked on the katcha portion of the road on the wrong side.
(4) The vehicle rolled down the khud when that portion of the road on which it was standing gave way on account of the load which it was carrying.
The parties are, however, at variance on the following points:
(1) The appellants allege that the vehicle was requisitioned specially for the purposes of carrying members of the public to the site of the election meeting at Palampur and while some of them were picked up in the vehicle at places which fell before the site of the accident, a few others were allowed to board the vehicle at the site of the accident.
(2) The respondents have denied the allegation in toto and have come forward with the case that the vehicle was halted near the site of the accident by a few persons who forcibly entered and occupied the same despite a warning given by the second respondent.
7. On a conspectus of the material evidence on record, therefore, it is established that on the day of the accident the vehicle in question was requisitioned and utilised for carrying persons residing in the locality to attend the election meeting at Palampur that the vehicle started from village Hangloh with about 18 to 20 persons on the board, that about 12 to 13 more persons boarded the vehicle at Lahla, that at village Gharthoon the vehicle was stopped and parked on that portion of the road on the wrong side where there was a katcha danga and that while some persons had boarded the vehicle there and others were about to board the same, the land beneath the danga gave way and the vehicle rolled down the khud. The question which requires consideration against the aforesaid background is whether any negligence is attributable to the second respondent and, if so, whether there is a causal connection between the negligence and the accident.
8. In the course of its judgment, the Tribunal attributed negligence to the second respondent on two counts: first, that some persons were allowed to board the vehicle while it was on its way from Lahla to Palampur and, secondly, that it was parked on the wrong side of the road. Out of these two counts, the second is more material and its impact has to be assessed in conjunction with the fact that the vehicle was parked on the katcha portion of the road on a danga The katcha portion of the road, especially where there are dangas, is not a place where a heavy vehicle carrying load ought to be parked. The second respondent, who claims to have the driving experience of about seven years and who further claims to have driven the vehicle often on the road, could not have overlooked this elementary fact if he had exercised even the minimal precaution. To part a heavy vehicle like a truck in which so many persons were travelling on a danga on the katcha portion of the road on the wrong side was itself an act asking for trouble which could and should have been foreseen. Such an act on the part of an experienced driver cannot but be attributed to his gross negligence and to an utter disregard of a foreseeable resultant injury. It is not unreasonable to infer that but for the vehicle having been parked where it was, the accident would not have occurred. To put it differently, the accident apparently occurred because the vehicle was parked on that portion of the road which could not have taken the weight of a truck which was carrying load and which, therefore, gave way. It is too far fetched to hold that the accident was caused on account of a latent defect in the road which could not have been detected by the second respondent. As held earlier, an experienced driver who have been often plying the vehicle on the same road should have foreseen that at the place where the vehicle came to be parked the road was in such a condition that it would not take the weight of a heavy vehicle carrying load. It does not require any expert knowledge to appreciate that in hilly areas, especially on the extreme edge of the road, the katcha portion with a danga will not have the strength to take the weight of such a vehicle whether it is in motion of it is parked. The vulnerable condition of the road at such a spot ought to be regarded as so patent that to call it a latent defect is to go out in search of an untenable excuse to overlook the negligence of the driver of the vehicle.
9. The holding of the Tribunal that there was a latent defect in the material portion of the road, which could not have been detected despite the exercise of reasonable care on the part of the second respondent, and that the failure of the Public Works Department, which was responsible for maintaining the road in a good and perfect condition, also contributed to the occurrence of the accident, and that the State Government was, therefore, guilty of “contributory negligence”, cannot be accepted. The point relating to the latent defect has already been covered and no more needs to be stid regarding the same. On the question of the alleged liability of the State Government on account of the so-called “contributory negligence”, which should have been more accurately alluded to as its liability, if any, as a joint tort-feasor, the Tribunal has apparently overlooked one of the fundamental principles governing the award of damages for the tort of negligence, namely, damnum sine injuria. There is no liability for damage which was not of a foreseeable type within the scope of the duty of care. Foreseeability is the sole test of whether damages are recoverable in negligence. When the wrongful act of a third party, who acts irresponsibly or unlawfully, intervenes as a New force between the negligent act of the original wrongdoer and the injury to the plaintiff, the element of remoteness may come into play and the test of reasonable foresesability may not be satisfied, unless the plaintiff establishes that the circumstances were such that the initial wrongdoer should have reasonably foreseen that the third party would act as he did in accordance with the hum in nature. The intervention of such a third force may not break the chain of causation where it is reasonably foreseeable as a probable consequence of the initial wrong doing. However, when a conscious act of human volition intervenes, the degree of likelihood required to make the first wrongdoer liable in much higher, at least where such intervening act is unlawful. It would seem incongruous to impose on him a greater burden of foresight for the irresponsible actions of those not under his control than for those who are (See: Halsbury’s Laws of England, Fourth Edition, Volume 12, Paras 1138 and 1143 at pages 437 and 443 and Mc. Gregor on Damages, Fourteenth Edition, Chapter 6, page 70). In the present case, even granting that the State Government owed a duty to maintain the road in a good and perfect condition and further that at the site of the accident it had neglected so to do, the question still arises whether the State could be expected to have reasonably foreseen as a probable consequence that in utter disregard of his duty of care a driver of a heavy and loaded vehicle would park his vehicle on the danga on the katcha portion of the road on the wrong side. The answer to the question cannot but be in the negative. The Tribunal, therefore erred in absolving the driver of the vehicle from the liability to pay damages on the basis of the aforesaid reasoning and in going further still by holding that it had no jurisdiction to entertain and try the petition in view of the “contributory negligence” on the part of the State Government against whom damages could not have been awarded in the course of the present proceedings.
10. The foregoing discussion leads to the conclusion that the appellants have succeeded in establishing that the deceased lost his life in the course of an accident arising out of the negligence on the part of the driver who was incharge of the vehicle in which he was travelling at the material time. Both the owner and the driver of ths vehicle (respondents No. 1 and 2) are, therefore, liable to pay compensation to the appellants and the respondent-Insurance Company in its turn is liable to satisfy the award, unless a statutory defence is available to it.
11. Shri A.K. Goel, learned Counsel for the respondent-Insurance Company, sought to raise certain statutory defences in the course of his submissions. He could not sustain them, however, in view of the fact that no foundation has been laid therefor in the pleadings as well as in the evidence. The law is well-settled that if a breach of a term of contract permits a party to the contract not to perform the contract, the burden is squarely on that party which complains of breach to prove that the breach has been committed by ths other party to ths contract. The test in such a situation would be who would fail if no evidence is led. The claimant or the insured is under no obligation to furnish evidence so as to enable the Insurance Company to wriggle out of its liability uader the contract of insurance. It is the fnsurance Company which must lead evidence to subs-tantiate its allegation that there has been a breach of the terms of the contract of insurance. The only statutory defence purported to be pleaded herein was that the deceased was a gratuitous passenger. No evidence has, however, been led in support of the case. As earlier found, the vehicle in question was specially requisitioned and utilised far carrying persons to attend the election meeting at Palampur. It is not established that the vehicle was placed at the disposal of the person requisitioning the same without recovering any charges. Besides, it is neither averred nor established that there was no provision in the policy covering wider risks so as to make the insurer liable to indemnify the insured against all sums which the insured may become legally liable to pay in respect of the death of any person. Applying the test who would fail if no evidence is led, the obvious answer is that the respondent Insurance Company is liable to satisfy the award. (See: Narcinva v. Kamat and Anr. v. Alfredo Antonio Doe Martins and Ors. ).
12. For the foregoing reasons, the appeal succeeds and it is allowed. The appellants are jointly held entitled to compensation in the sum of Rs. 30,000/- which the respondents are held liable to pay. The appellants are held entitled to simple interest at the rate of 12 per cent per annum on the said sum from the date of the institution of the claim petition (August 30,1985) till the date of payment or deposit. The respondent-Insurance Company will deposit the awarded amount together with interest and costs in the sum of Rs. 250/- on or before August 21, 1987, in the Registry of this Court. Upon such deposit being made, the case be listed before the Registrar for settlement of the usual draft order regarding the investment of the amount.