IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No.: 389 of 2004 alongwith FAO No.404 of 2004. Date of decision : 17.12.2009 In FAO No. 389 of 2004 Sanjay Rathor …Appellant. Versus Prakam Singh & Company and others. …Respondents. In FAO No. 404 of 2004 Prakam Singh & Company …Appellant. Versus Vinay Rathor and others. …Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1 No. In FAO No. 389 of 2004 For the Appellant: Mr. G.R.Palsra, Advocate. For the respondent No.1: Mr. B.K.Malhotra, Advocate. For the respondent No.2: Mr. Sandeep Pandey vice Mr. Naveen Bhardwaj, Advocate. For the respondent No.3. Mr. K.D.Sood, Advocate. In FAO No. 404 of 2004 For the appellant: Mr. B.K.Malhotra, Advocate. For the respondent No.1: Mr. G.R.Palsra, Advocate For the respondent No.2: Mr. Sandeep Pandey vice Mr. Naveen Bhardwaj, Advocate For the respondent No.3: Mr. K.D.Sood, Advocate. Deepak Gupta, J. (oral) Both these appeals are being disposed of by one judgement since they arise out of the same accident and the similar question of law and facts are involved. 1 Whether the reporters of the local papers may be allowed to see the Judgment? yes. 2 Briefly stated the facts of the case are that an accident of Motorcycle bearing No. DHT-785 took place with tempo bearing No. HP-53-947. The motorcycle was being driven by Shri Vinay Rathor. His brother Sanjay Rathor was a pillion rider on the vehicle. Both of them filed claim petitions under Section 166 of the Motor Vehicles Act, 1988 claiming compensation from M/s Prakam Singh and Company, the owner of the vehicle; Shri Ashok Kumar, the driver of the vehicle; and New India Assurance Company with whom the vehicle was insured. The learned Tribunal decided the issue of negligence in favour of the claimants. In so far as Vinay Rathor is concerned Rs.60,000/- was awarded as compensation to him. The learned Tribunal, however, held that the driver of the tempo Shri Ashok Kumar did not possess a valid driving license in as much as the license did not have any endorsement entitling him to drive a transport vehicle and hence exonerated the Insurance Company of his liability to pay the awarded amount. In respect of Shri Sanjay Rathor, the learned Tribunal came to the conclusion that there is no evidence on record to show that he has suffered any pecuniary damages and did not award him any amount despite holding that he had suffered 3 injures and the accident had taken place due to the rash and negligent driving of Ashok Kumar, driver of the tempo. It would be pertinent to mention that an appeal for enhancement filed by Shri Vinay Rathor being FAO No. 388 of 2004 was dismissed by this Court on 29.9.2009. FAO No.389 of 2004 has been filed by Shri Sanjay Rathor praying that he be awarded just and reasonable compensation. FAO No.404 of 2004 has been filed by the owner of the tempo praying that the Insurance Company may held liable to pay the amount. In Sanjay Rathor’s case the claimant produced on record the photo copy of the discharge certificate Mark-x which showed that he was taken to hospital on 9.6.1998 at 7.45 a.m and discharged at 10.00 a.m on the same date and a fracture on the upper end of the Tibia right side was diagnosed. He was given some treatment. According to the claimant, he was thereafter treated at the Command Hospital on Northern Command but there is no document or evidence to this effect. The claimant has placed on record Ext.PW-2/A which is the Medical Board Proceedings carried out by his employer in the army in which it is mentioned that the principal disability which the claimant is suffering is open fracture patella right i.e. the right knee. It is clearly mentioned that he suffered this injury on 9th June, 1998, the 4 date of the accident. Due to this injury he has been placed in the low medical category. It may be true that the claimant has not led any evidence whatsoever to show what is the pecuniary damage suffered by him. He was also not admitted in hospital but was treated there and discharged within three hours. But the discharge certificate itself shows that he was discharged after his leg was put in plaster. Even otherwise it is common knowledge that a fracture of this type will not heal in less than a month. Even if the petitioner had not suffered any pecuniary damages due to loss of future earnings, etc. the Tribunal was absolutely wrong in not awarding him any amount what-so-ever. A person who has received an injury like a fracture suffers pain and suffering. The patient remained totally immobile for almost one month and even if there was no other loss he had to be compensated for the same. In fact in this case the petitioner had also led evidence to show that he has been placed in low medical category. Once an army official is placed in low medical category his chances of promotion, etc. are bound to get reduced. In the army the retirement age of the personnel depends on the post at which they retire. In case an army personnel does not get 5 promotion he retires at a younger age. True it is that the claimant was lax in leading evidence in this behalf but some factors which are so commonly known and are apparent can be judicially noticed by a Motor Accident Claims Tribunal and in fact it is the duty of the Tribunal to take note of such facts. Keeping all these factors into consideration, I am of the considered view that the claimant should be granted global compensation for pain, suffering, future disability, etc. and the same is assessed at Rs.25,000/- The claimant shall also be entitled to interest on this amount @ 9% per annum from the date of filing of claim petition till deposit thereof. Next comes the question as to whether the Insurance Company is liable to indemnify the insured and satisfy the award or not. The only ground raised by the Insurance Company is that the license of the driver did not bear an endorsement permitting him to drive a transport vehicle. The law is very clear that after 28.3.2001 the endorsement to drive a transport vehicle is necessary but prior to that date such endorsement was not necessary since at that time a light motor vehicle covered a transport vehicle. Reference in this behalf may be made to the judgements of the Apex Court in National Insurance Co. Ltd. vs. Kusum Rai and others (2006) 4 SCC 250, New India Assurance 6 Company Ltd. vs. Prabhu Lal (2008) 1 SCC 696 and National Insurance Company Ltd. vs. Annappa Irappa Nesria and others, (2008) 3 SCC 464. As per the law laid down by the Apex Court prior to 28.3.2001 endorsement of transport vehicle was not required but after this date an endorsement in this regard was definitely required. The accident in question occurred on 9.6.1998 and at that time as per the law laid down such endorsement was not required. Therefore, the Insurance Company was bound to satisfy the award. In view of the above discussion both the appeals are allowed. The claimant Sanjay Rathor is held entitled to compensation of Rs.25,000/- plus interest as aforesaid. The Insurance Company is held liable to pay the awarded amount. The Insurance Company is directed to deposit the awarded amount in the Registry of this Court within 12 weeks from today. Thereafter, the amount deposited by the owner- M/s Prakam Singh and Company shall be refunded to it and the surety furnished by it shall be discharged. The amount payable to the claimants shall be paid to them. 17th December, 2009 ( Deepak Gupta ) ™ Judge.