MAC.APP. 1102/2017 Page 1 of 17

* IN THE HIGH COURT OF DELHI AT NEW DELHI

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January 2026

Pronouncement on: 10

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March 2026

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March 2026

+ MAC.APP. 1102/2017 & CM APPL. 45667/2017

THE ORIENTAL INSURANCE CO LTD .....Appellant

Through: Ms. Shruti Jain, Advocate.

versus

RAJ KUMAR & ORS .....Respondents

Through: Mr. Pankaj Gupta, Advocate with

Ms. Moumita Mondal for R-1.

CORAM:

HON'BLE MR. JUSTICE ANISH DAYAL

JUDGMENT

ANISH DAYAL, J

1. This appeal has been filed by the Insurance Company challenging

the impugned award dated 8

th

September 2017 passed by the Motor

Accident Claims Tribunal, Karkardooma Courts, Delhi (‘MACT’) in

DAR No. D-94/15 (New No.1074/2016).

2. The Insurance Company challenges the MACT’s award on the

following grounds:

(i) That it was not established that the accident was caused due

to rash and negligent driving of the offending vehicle by

MAC.APP. 1102/2017 Page 2 of 17

Mukesh Kumar/ respondent no.2, and the MACT failed to

conduct a proper enquiry.

(ii) That the onus was on claimant/respondent nos.1 to show

that the accident was caused due to rash and negligent

driving of the offending vehicle.

(iii) That since two vehicles were involved in the collision, 50%

of contributory negligence ought to have been determined.

(iv) That the determination of income of respondent

no.1/claimant was on the basis of minimum wages of a

matriculate, in the absence of proof of occupation and

income, and therefore, claimant was not entitled to loss of

future income.

(v) That the functional disability was assessed at 60%, despite

failure of respondent no.1/claimant to establish that he had

suffered any loss due to the physical disability.

(vi) That the MACT failed to seek doctor’s opinion on the

Disability Certificate to assess the functional disability, and

should have taken the functional disability at 30% in

relation to the whole body.

(vii) That the MACT wrongly awarded loss of income for one

year during the period of treatment, despite there being no

evidence in this regard.

(viii) That there was error in awarding Rs.75,000/- under the head

of disfigurement, as the same was exorbitant.

MAC.APP. 1102/2017 Page 3 of 17

Incident

3. On 18

th

October 2014, at about 5:15 P.M., one Raj Kumar/injured

was carrying three passengers in his e-rickshaw and near Guru Tej

Bahadur Hospital, Delhi, when a Mahindra Xylo car bearing registration

No.UP-14DT-3066 came from the wrong side and hit the e-rickshaw. Raj

Kumar along with other passengers sustained injuries. FIR No.653/2014

was registered at P.S. GTB Enclave and subsequently chargesheet was

filed. DAR was filed, which was treated as a petition by the MACT.

Impugned Award

4. The MACT held that the testimony of Raj Kumar was unrebutted,

as the driver had not come forward to contest the claim petition. Reliance

was placed on the site plan and the Mechanical Inspection Report (MIR),

which corroborated the testimony of PW1. Since, the testimony was also

consistent with the FIR, no question of false implication arose, and Issue

no. 1 was decided in favour of the claimant with regard tto the causation

of injuries due to the accident.

5. Raj Kumar/injured sustained injuries i.e. Grade III B fracture of

both bones of the leg and left segmental bone leg (closed) with bluters

left leg with fracture medial maleoli and other associated injuries. The

testimony of PW-1, supported by medical records Ex. PW-1/1, medical

bills Ex. PW-1/2, and Disability Certificate Ex. PW-1/3.

6. PW-2/Dr. Mohit Arora, member of the Disability Board, GTB

Hospital, who signed the Disability Certificate annexed as Ex. PW-1/3,

testified that claimant has suffered 61% permanent disability in relation

MAC.APP. 1102/2017 Page 4 of 17

to both lower limbs, which was directly attributable to the injuries

sustained in the accident.

7. Considering that the claimant was a driver by profession, and that

the permanent disability affected both lower limbs, the MACT held that

the functional disability should be taken as 60%, as it substantially

impaired his earning capacity.

8. As regards benchmark income, since there was no documentary

proof but there was an education certificate as a matriculate, the income

was assessed on the basis of minimum wages of a matriculate, i.e.,

Rs.10,478/- per month. Considering that claimant was 29 years of age,

multiplier of 17 was applied and the loss of future income was computed

at Rs.12,82,507/-. Further, compensation of Rs.75,000/- was granted

towards disfigurement. The detailed tabulation of the compensation

provided by MACT is as under:

S.

No.

Particulars Amount (Rs.)

1 Compensation towards pain and sufferings Rs.70,000/-

2 Compensation towards medical bills Rs.35,960/-

3 Loss of earning capacity due to disability Rs.12,82,507/-

4 Loss of earning for a period of 12 months Rs.1,25,736/-

5 Attendant charges for 6 months Rs.21,000/-

6 Special diet and conveyance Rs.25,000/-

7

Compensation towards loss of amenities and

enjoyment

Rs.75,000/-

8 Compensation towards disfigurement Rs.75,000/-

MAC.APP. 1102/2017 Page 5 of 17

TOTAL Rs.17,10,203/-

Analysis

9. As regards the issue of negligence, the Court has examined the

impugned award along with the testimony of PW-1, evidence and the

documents on record.

10. PW1 stated in its testimony that on 18

th

October 2014, he along

with passengers was going towards Jhilmil Metro Station on e-rickshaw,

a Xylo car driven by the driver at high speed, without taking precautions,

violated the traffic rules and without blowing any horn came from the

wrong side after changing its driving lane and hit the e-rickshaw with

great force. As a result, his e-rickshaw was dragged for a distance of 4 to

5 meters, and he suffered the previous injuries.

11. In his cross-examination, he confirmed there were three passengers

in the e-rickshaw and he did not have a license since it was not issued at

that time because no such notification had been issued. However, he had

a driving licence for LMV(NT) and there was a separate endorsement on

the driving licence to drive a three-wheeler. He denied the suggestion

that he suddenly came in front of Xylo car.

12. Court has also considered the site plan, which is extracted as

under:

MAC.APP. 1102/2017 Page 6 of 17

13. It is fairly clear from the site plan that the Xylo car, which was

driving on the wrong side of the road while changing lane, collided with

the e-rickshaw which was going on the right side of the road. The MIR

also indicates that it was a frontal collision. Thus, the question of

negligence stands well established. Additionally, FIR was registered,

MAC.APP. 1102/2017 Page 7 of 17

consistent with the testimony of PW1, and subsequently chargesheet was

filed against the driver of the offending vehicle. Therefore, there is no

reason to accept the plea of appellant/ Insurance Company in this regard.

14. On the aspect of contributory negligence, the principle consistently

applied by the Supreme Court is that such a defense must be specifically

pleaded and supported by some material indicating that the claimant’s

own act or omission had a proximate role in the accident. In Jiju

Kuruvilla v. Kunjujamma Mohan, (2013) 9 SCC 166, in a similar case

of head on collision the Supreme held that apportionment of liability

arises only when there exists tangible material to infer contributory

negligence, and mere conjectures cannot dilute the tortfeasor’s

responsibility. Relevant paragraph is extracted as under:

“20.5. The mere position of the vehicles after accident,

as shown in a scene mahazar, cannot give a substantial

proof as to the rash and negligent driving on the part

of one or the other. When two vehicles coming from

opposite directions collide, the position of the vehicles

and its direction, etc. depends on a number of factors

like the speed of vehicles, intensity of collision, reason

for collision, place at which one vehicle hit the other,

etc. From the scene of the accident, one may suggest or

presume the manner in which the accident was caused,

but in the absence of any direct or corroborative

evidence, no conclusion can be drawn as to whether

there was negligence on the part of the driver. In

absence of such direct or corroborative evidence, the

Court cannot give any specific finding about

negligence on the part of any individual.

…

MAC.APP. 1102/2017 Page 8 of 17

21. In view of the aforesaid, we, therefore, hold that the

Tribunal and the High Court erred in concluding that

the said accident occurred due to the negligence on the

part of the deceased as well, as the said conclusion

was not based on evidence but based on mere

presumption and surmises.

(emphasis added)

15. Further, reliance can also be placed on the judgment of

Prabhavathi & Ors. v The Managing Director, Bangalore

Metropolitan, Transport Corporation, 2025 INSC 293, wherein it was

held that in absence of evidence on record, it cannot be assumed that the

accident occurred due to rash and negligent driving of both vehicles. The

relevant paragraph is extracted as under:

“11. Thus, in our considered view, the contributory

negligence taken by the High Court at 25% of the

deceased is erroneous. We advert to the principles laid

down in Jiju Kuruvila v. Kun- jujamma Mohan, where

it was held that in the absence of any direct or

corroborative evidence on record, it cannot be

assumed that the accident occurred due to the rash and

negligent driving of both the vehicles. This exposition

came to be followed in Kumari Kiran v. Sajjan Singh

and Ors. In the present case, therefore, on an

allegation simpliciter, it cannot be presumed that the

accident occurred due to rash and negligent driving of

both vehicles, for having driven at high speed.”

(emphasis supplied)

16. The evidence on record, namely the testimony of PW-1, the FIR,

the site plan, and the chargesheet, clearly establishes that the accident

occurred due to the rash and negligent driving of respondent no.

MAC.APP. 1102/2017 Page 9 of 17

2/Mukesh Kumar. There is no evidence on record to suggest that the

injured was negligent while driving. Based on the aforesaid judgments,

even in cases of frontal collision, the Court cannot determine

contributory negligence on the basis of presumption without supporting

evidence.

17. Further, the driver and the owner of the offending vehicle were not

produced as witnesses and, therefore, there is no evidence on which the

issue of contributory negligence could, if at all, be raised by the

Insurance Company. Therefore, the plea of contributory negligence has

to be rejected.

18. The second issue raised is regards the adoption of minimum wages

of a matriculate. Considering that no proof of income was placed on

record, the minimum wages of a matriculate were adopted. The

educational document exhibited as Ex.PW1/4 shows that the claimant

passed the Secondary School Examination in August 2004. Therefore,

there was sufficient proof to adopt the minimum wages for a matriculate.

19. Considering that future prospects were not granted by the MACT,

in order to align the compensation with the principles laid down in

National Insurance Co Ltd v Pranay Sethi, (2017) 16 SCC 680, the

injured being 29 years of age at the time of the accident, future prospects

at 40% are to be added. Further, considering the age of the injured, there

is no error in applying the multiplier of 17.

20. As far as the permanent disability is concerned, the testimony of

PW-2/Dr. Mohit Arora has to be considered. He has stated that, as per

MAC.APP. 1102/2017 Page 10 of 17

the Disability Certificate, 61% permanent disability was certified in

relation to both lower limbs. He further stated that the disability was

permanent in nature and not progressive.

21. The MACT’s assessment that considering the vocation of injured

as a driver, his working ability would be fully affected and, therefore, the

functional disability was taken as 60%. The only issue which requires

consideration here is that PW1, in his testimony, stated that he was

driving e-rickshaw only one month prior to the date of the accident and

he was a driver by profession prior to the accident.

22. Reliance in this regard can be placed on the judgment of Raj

Kumar v. Ajay Kumar (2011) 1 SCC 343, wherein the Supreme Court

held that the Tribunal must assess not merely the extent of permanent

disability but its actual impact on the claimant’s earning capacity, which

may differ from the medical percentage of disability. This requires

evaluating the claimant’s pre-accident vocation, the functions affected,

and whether livelihood can still be earned despite the disability. The

Court emphasised that disability and loss of earning capacity are distinct

concepts, except in cases where evidence shows they coincide. Relevant

paragraphs are extracted as under:

“11. What requires to be assessed by the Tribunal is

the effect of the permanent disability on the earning

capacity of the injured; and after assessing the loss of

earning capacity in terms of a percentage of the

income, it has to be quantified in terms of money, to

arrive at the future loss of earnings (by applying the

standard multiplier method used to determine loss of

dependency). We may however note that in some cases,

MAC.APP. 1102/2017 Page 11 of 17

on appreciation of evidence and assessment, the

Tribunal may find that the percentage of loss of

earning capacity as a result of the permanent

disability, is approximately the same as the percentage

of permanent disability in which case, of course, the

Tribunal will adopt the said percentage for

determination of compensation. (See for example, the

decisions of this Court in Arvind Kumar Mishra v. New

India Assurance Co. Ltd. [(2010) 10 SCC 254 : (2010)

3 SCC (Cri) 1258 : (2010) 10 Scale 298] and Yadava

Kumar v. National Insurance Co. Ltd. [(2010) 10 SCC

341 : (2010) 3 SCC (Cri) 1285 : (2010) 8 Scale 567] )

12. Therefore, the Tribunal has to first decide whether

there is any permanent disability and, if so, the extent

of such permanent disability. This means that the

Tribunal should consider and decide with reference to

the evidence:

(i) whether the disablement is permanent or

temporary;

(ii) if the disablement is permanent, whether it is

permanent total disablement or permanent partial

disablement;

(iii) if the disablement percentage is expressed with

reference to any specific limb, then the effect of such

disablement of the limb on the functioning of the entire

body, that is, the permanent disability suffered by the

person.

If the Tribunal concludes that there is no permanent

disability then there is no question of proceeding

further and determining the loss of future earning

capacity. But if the Tribunal concludes that there is

permanent disability then it will proceed to ascertain

its extent. After the Tribunal ascertains the actual

extent of permanent disability of the claimant based on

the medical evidence, it has to determine whether such

MAC.APP. 1102/2017 Page 12 of 17

permanent disability has affected or will affect his

earning capacity.

13. Ascertainment of the effect of the permanent

disability on the actual earning capacity involves three

steps. The Tribunal has to first ascertain what

activities the claimant could carry on in spite of the

permanent disability and what he could not do as a

result of the permanent disability (this is also relevant

for awarding compensation under the head of loss of

amenities of life). The second step is to ascertain his

avocation, profession and nature of work before the

accident, as also his age. The third step is to find out

whether (i) the claimant is totally disabled from

earning any kind of livelihood, or (ii) whether in spite

of the permanent disability, the claimant could still

effectively carry on the activities and functions, which

he was earlier carrying on, or (iii) whether he was

prevented or restricted from discharging his previous

activities and functions, but could carry on some other

or lesser scale of activities and functions so that he

continues to earn or can continue to earn his

livelihood.”

(emphasis added)

23. In Raj Kumar v. Ajay Kumar (supra), the Court summarized the

principles, which are extracted as under:

“19. We may now summarise the principles discussed

above:

(i) All injuries (or permanent disabilities arising from

injuries), do not result in loss of earning capacity.

(ii) The percentage of permanent disability with

reference to the whole body of a person, cannot be

assumed to be the percentage of loss of earning

capacity. To put it differently, the percentage of loss of

earning capacity is not the same as the percentage of

MAC.APP. 1102/2017 Page 13 of 17

permanent disability (except in a few cases, where the

Tribunal on the basis of evidence, concludes that the

percentage of loss of earning capacity is the same as

the percentage of permanent disability).

(iii) The doctor who treated an injured claimant or

who examined him subsequently to assess the extent of

his permanent disability can give evidence only in

regard to the extent of permanent disability. The loss of

earning capacity is something that will have to be

assessed by the Tribunal with reference to the evidence

in entirety.

(iv) The same permanent disability may result in

different percentages of loss of earning capacity in

different persons, depending upon the nature of

profession, occupation or job, age, education and

other factors.”

(emphasis added)

24. Further, in the judgment of Raj Kumar (supra), an illustration of

a driver was given who had suffered amputation of a hand and whose

permanent physical disability was assessed at 60%. Considering his

vocation as a driver and the fact that he would not be able to continue

driving and that his chances of securing any alternative employment

would be bleak, the functional disability was assessed at 75%. In the

present case, although the injured has not suffered any amputation, he

has sustained permanent physical disability of 61% in relation to both

lower limbs. Considering the vocation of the injured as a driver, it is

evident that his employment would be completely affected. A disability

of more than 50% in both lower limbs would make it impossible for him

to drive any vehicle and, therefore, his livelihood would certainly be

MAC.APP. 1102/2017 Page 14 of 17

affected. Consequently, the MACT was not at all amiss in assessing the

functional disability at 60%.

25. The award of Rs.75,000/- towards disfigurement has been

challenged by the Insurance Company. However, there is no reason to

accept the said contention in view of the facts and circumstances of the

case and the nature of the injuries sustained by the claimant. The record

shows that the claimant remained out of work for at least one year, was

admitted to the hospital on three occasions, and had suffered fractures

and needed to be attended to during recovery, for which attendant

charges have been awarded. All these factors are consistent with the

principles governing the grant of just and reasonable compensation under

the Motor Vehicles Act, which is a beneficial piece of legislation.

26. The Supreme Court, in a catena of judgments, has emphasized the

principles of just and reasonable compensation. Reliance can be placed

on the judgment of Sarla Verma v. DTC, (2009) 6 SCC 121, wherein the

Supreme Court underscored that “just compensation” must be fair,

equitable and consistent, and cannot vary arbitrarily merely because

different tribunals perceive different amounts as just. It emphasised that

compensation must be objectively assessed, guided by uniform principles

to avoid unpredictability and disparity. Relevant paragraphs are extracted

as under:

“16. Compensation awarded does not become “just

compensation” merely because the Tribunal considers

it to be just. For example, if on the same or similar

facts (say the deceased aged 40 years having annual

income of Rs 45,000 leaving his surviving wife and

MAC.APP. 1102/2017 Page 15 of 17

child), one Tribunal awards Rs 10,00,000 another

awards Rs 5,00,000, and yet another awards Rs

1,00,000, all believing that the amount is just, it cannot

be said that what is awarded in the first case and the

last case is just compensation. “Just compensation” is

adequate compensation which is fair and equitable, on

the facts and circumstances of the case, to make good

the loss suffered as a result of the wrong, as far as

money can do so, by applying the well-settled

principles relating to award of compensation. It is not

intended to be a bonanza, largesse or source of profit.

17. Assessment of compensation though involving

certain hypothetical considerations, should

nevertheless be objective. Justice and justness emanate

from equality in treatment, consistency and

thoroughness in adjudication, and fairness and

uniformity in the decision-making process and the

decisions. While it may not be possible to have

mathematical precision or identical awards in

assessing compensation, same or similar facts should

lead to awards in the same range. When the

factors/inputs are the same, and the formula/legal

principles are the same, consistency and uniformity,

and not divergence and freakiness, should be the result

of adjudication to arrive at just compensation.

In Susamma Thomas [(1994) 2 SCC 176 : 1994 SCC

(Cri) 335] , this Court stated: (SCC p. 185, para 16)

“16. … The proper method of computation is the

multiplier method. Any departure, except in

exceptional and extraordinary cases, would

introduce inconsistency of principle, lack of

uniformity and an element of unpredictability, for

the assessment of compensation.””

(emphasis added)

27. The revised computation is as under:

MAC.APP. 1102/2017 Page 16 of 17

S. no Heads of Compensation Awarded by

tribunal

Awarded by

the Court

Pecuniary Loss

1. Expenditure on treatment (A) Rs. 35,960/- Rs. 35,960/-

2. Expenditure of conveyance

and special diet (B)

Rs. 25,000/- Rs. 25,000/-

3. Attendant charges (C) Rs. 21,000/- Rs. 21,000/-

4. Monthly income of injured (D) Rs. 10,478/- Rs. 10,478/-

5. Future prospects @40% (E) Nil Rs. 4,191/-

6. Loss of income (D x 12= F) Rs. 1,25,736/- Rs. 1,25,736/-

7. Functional disability (G) 60% 60%

8. Multiplier (H) 17 17

9. Loss of future income

[(D+E) 12 x G x H]= I

Rs. 12,82,507/- Rs.17,95,486/-

Non-pecuniary loss

10. Pain and suffering (J) Rs. 70,000/- Rs. 70,000/-

11. Compensation towards loss of

amenities and enjoyment (K)

Rs. 75,000/- Rs. 75,000/-

12. Compensation towards

disfigurement (L)

Rs. 75,000/- Rs. 75,000/-

13. Total (A+B+C+F+I+J+K+L=

M)

Rs. 17,10,203/- Rs. 22,23,182/-

14. Interest 9% 9%

Directions

28. Vide order dated 29

th

January 2018, this Court had directed the

deposit of entire awarded amount with up to date interest with the

tribunal and further directed release of 40% of the awarded to the

claimant/ injured as per the terms of the directions in the impugned

award.

MAC.APP. 1102/2017 Page 17 of 17

29. Enhanced compensation along with 9% interest per annum from

the date of filing the petition will be deposited before the MACT within

in a period of four weeks.

30. It is directed that a lump sum amount of Rs.2,00,000/- shall be

released to the claimant within a period of two weeks thereafter. The

remaining amount shall continue to be kept in the Fixed Deposit Receipts

(FDRs) and would be released to the claimant as per the Scheme of the

impugned award.

31. The appeal is, therefore, disposed of in above terms. Pending

applications, if any, are rendered infructuous.

32. Statutory deposit, if any, be refunded to the appellant.

33. Judgment be uploaded on the website of this Court.

(ANISH DAYAL)

JUDGE

MARCH 10, 2026/ak/zb