[Cites 7, Cited by 0]
Delhi High Court
Rohit Kumar vs Sukhdev Singh & Ors (United India ... on 19 March, 2026
$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 19th March 2026.
+ MAC.APP. 43/2016 & CM APPL. 15272/2017
ROHIT KUMAR .....Appellant
Through: Ms. S.N. Parashar, Advocate with
Mr. Ritik Singh, Advocate.
versus
SUKHDEV SINGH & ORS (UNITED INDIA INSURANCE CO
LTD ) .....Respondents
Through: Ms. Suman Bagga, Advocate with
Ms. Mouli Sharma, Advocate for R-
3/Insurance Company.
CORAM:
HON'BLE MR. JUSTICE ANISH DAYAL
JUDGMENT
%
ANISH DAYAL, J: (ORAL)
1. This appeal has been filed seeking enhancement of compensation
awarded by the Motor Accidents Claims Tribunal ('MACT'), Karkardooma
Courts, Delhi (hereinafter, 'Tribunal') in MAC Petition No. 572F/2012 by
an award dated 16th October 2015 (hereinafter, 'impugned award').
Tribunal awarded compensation of Rs.9,44,280/- with interest at the rate of
12% per annum from the date of filing to appellant/injured claimant who
suffered grievous injuries.
2. The accident occurred on 21st September 2012 at 12:30 am, when
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appellant/injured claimant was going towards Ghaziabad from Akshardham
Temple and his motorcycle was hit by a truck bearing registration no. HR-
39A-0085 ('offending vehicle') from behind being driven rashly and
negligently by respondent no.1.
3. Mr. S. N. Parashar, counsel for appellant/injured claimant seeks
enhancement on three counts: firstly, functional disability ought to have
been assessed at more than 50% considering that permanent disability was
certified at 88% with respect to his right lower limb; secondly, future
prospects ought to have been granted which have been completely omitted
and; thirdly, amount awarded towards non-pecuniary damages were highly
depressed.
4. Disability Certificate of appellant/injured claimant certifies that he
had a permanent locomotor impairment of 88% in his right lower limb. In
the cross-examination of PW-2, Senior Resident (Orthopaedics) from Guru
Tegh Bahadur Hospital, who had been summoned with regards to the
Disability Certificate, stated, that he could not state the percentage of
disability in relation to the whole body, but "given 88% of disability as in
the present case, I can say that his right lower limb is rendered nearly non-
functional and without external support the patient cannot be mobilized. He
cannot walk, cannot climb stairs, cannot squat, and cannot stand properly".
5. On this basis, Mr. Parashar, counsel for appellant/injured claimant
contends that, considering his vocation as a lift mechanic, he would have
been rendered completely non-functional for his job and for other similar
jobs. Appellant/injured claimant was 21 years of age on the date of accident
and was allegedly employed as a lift mechanic at M/s Start Magicman
Private Limited.
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6. Tribunal had personally examined appellant/injured claimant at the
final stage of proceedings, and observation of the Tribunal is noted in
paragraph 16 of the impugned award, which is extracted as under:
"16. This Court has looked into the statement of PW-2
as well as the entire medical record of the claimant.
The claimant was personally examined by the Court at
the final stage of proceedings. The claimant had
appeared with urinary bag in his hands and was
feeling immense difficulty to even stand. He stated that
he was working as a Lift Mechanic with M/s. Start
Magicman Pvt. Ltd. I assess that due to the disabilities
sustained, his capacity has been considerably reduced,
restricting him from carrying out his work in a normal
manner. Considering the evidence on record and
keeping in view the facts and circumstances, the
functional disability of claimant is taken as 50% in
relation to his whole body, in view of dictum of "Raj
Kumar v. Ajay Kumar & Anr., (2011) 1 SCC 343".
7. As per the testimony of appellant/injured claimant (PW-1), he was
working in a private company and earning Rs. 15,000/- per month. Tribunal
does note that when he was examined, he stated that he was working as a
lift mechanic.
8. Considering that there was no proof of his employment, minimum
wages applicable of an unskilled worker were taken at Rs.7,020/- per
month.
9. Ms. Suman Bagga, counsel for respondent no.3/Insurance Company,
states that in these circumstances, the claim of enhancement of functional
disability may not be correct, since no proof of employment has been
placed.
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10. To that extent, the Court agrees with the view put forth by respondent
no.3/Insurance Company that there is nothing on record, except for the
statement made before the Tribunal that he was employed as a lift
mechanic.
11. However, assuming that he was employed in a similar job, which
required certain functionality and considering that he was 21 years of age at
that time, along with the testimony of PW-2, which notes severity of the
impediment that will be caused to him due to the disability, the Court is
inclined to enhance assessment of functional disability to 70%.
12. Reliance in this regard may be placed on Raj Kumar v. Ajay Kumar
(2011) 1 SCC 343, where 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, 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
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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 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
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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)
13. 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 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)
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14. As regards future prospects, same has to be aligned with the
principles enunciated in National Insurance Co. Ltd. v. Pranay Sethi. 2017
(16) SCC 680, therefore, 40% towards future prospects will have to be
awarded, considering that the Tribunal did not grant any future prospects.
Relevant observation of the Supreme Court is extracted as under:
"59.4. In case the deceased was self-employed or on a fixed
salary, an addition of 40% of the established income should
be the warrant where the deceased was below the age of 40
years. An addition of 25% where the deceased was between
the age of 40 to 50 years and 10% where the deceased was
between the age of 50 to 60 years should be regarded as the
necessary method of computation. The established income
means the income minus the tax component.
(emphasis added)
15. Thirdly, as regards non-pecuniary losses, reliance may be placed on
the decision of Supreme Court in K.S. Muralidhar v. R. Subbulakshmi and
Anr. 2024 SCC Online SC 3385, where the Supreme Court observed that
"pain and suffering" cannot be captured by any fixed definition, drawing on
legal, medical, and philosophical sources to emphasise its deeply subjective
and life-altering nature. It recognised that translating such profound human
loss into money is an inherently artificial exercise, yet courts must ensure
fairness, consistency, and sensitivity to the victim's lifelong deprivation.
The Court stressed that in cases of severe or 100% disability, compensation
must meaningfully reflect the permanent rupture in the victim's physical,
emotional, and existential well-being. Relevant paragraphs are extracted as
under:
"13. While acknowledging that 'pain and suffering', as a
concept escapes definition, we may only refer to certain
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authorities, scholarly as also judicial wherein attempts have
been made to set down the contours thereof.
13.1 The entry recording the term 'pain and suffering'
in P. Ramanatha Iyer's Advanced Law Lexicon reads
as under:--
"Pain and suffering. The term 'Pain and
suffering' mean physical discomfort and distress
and include mental and emotional trauma for
which damages can be recovered in an accident
claim.
This expression has become almost a term of art,
used without making fine distinction between pain
and suffering. Pain and suffering which a person
undergoes cannot be measured in terms of money
by any mathematical calculation. Hence the Court
awards a sum which is in the nature of a
conventional award [Mediana, The, [1900] A.C.
113, 116]"
...
13.5 In determining non-pecuniary damages, the
artificial nature of computing compensation has been
highlighted in Heil v. Rankin, as referred to in Attorney
General of St. Helenav. AB as under:--
"23. This principle of 'full compensation' applies
to pecuniary and non-pecuniary damage alike.
But, as Dickson J indicated in the passage cited
from his judgment in Andrews v. Grand & Toy
Alberta Ltd., 83 DLR (3d) 452, 475-476, this
statement immediately raises a problem in a
situation where what is in issue is what the
appropriate level of 'full compensation' for non-
pecuniary injury is when the compensation has to
be expressed in pecuniary terms. There is no
simple formula for converting the pain and
suffering, the loss of function, the loss of amenity
and disability which an injured person has
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sustained, into monetary terms. Any process of
conversion must be essentially artificial. Lord
Pearce expressed it well in H West & Son
Ltd. v. Shephard, [1964] A.C. 326 when he said:
'The court has to perform the difficult and
artificial task of converting into monetary
damages the physical injury and
deprivation and pain and to give judgment
for what it considers to be a reasonable
sum. It does not look beyond the judgment
to the spending of the damages.'
24. The last part of this statement is undoubtedly
right. The injured person may not even be in a
position to enjoy the damages he receives because
of the injury which he has sustained. Lord Clyde
recognised this in Wells v. Wells, [1999] A.C.
345, 394H when he said:'One clear principle is
that what the successful plaintiff will in the event
actually do with the award is irrelevant."
...
14. In respect of 'pain and suffering' in cases where
disability suffered is at 100%, we may notice a few
decisions of this Court:--
14.1 In R.D Hattangadi v. Pest Control (India) (P) Ltd.
It was observed:
"17. The claim under Sl. No. 16 for 'pain and
suffering' and for loss of amenities of life under
Sl. No. 17, are claims for non-pecuniary loss. The
appellant has claimed lump sum amount of Rs.
3,00,000 each under the two heads. The High
Court has allowed Rs. 1,00,000 against the claims
of Rs. 6,00,000. When compensation is to be
awarded for 'pain and suffering' and loss of
amenity of life, the special circumstances of the
claimant have to be taken into account including
his age, the unusual deprivation he has suffered,
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the effect thereof on his future life. The amount of
compensation for non-pecuniary loss is not easy
to determine but the award must reflect that
different circumstances have been taken into
consideration. According to us, as the appellant
was an advocate having good practice in different
courts and as because of the accident he has been
crippled and can move only on wheelchair, the
High Court should have allowed an amount of Rs.
1,50,000 in respect of claim for 'pain and
suffering' and Rs. 1,50,000 in respect of loss of
amenities of life. We direct payment of Rs.
3,00,000 (Rupees three lakhs only) against the
claim of Rs. 6,00,000 under the heads "'pain and
suffering'" and "Loss of amenities of life".
14.2 This Judgment was recently referred to by this
Court in Sidram v. United India Insurance Company
Ltd reference was also made to Karnataka
SRTC v. Mahadeva Shetty (irrespective of the
percentage of disability incurred, the observations are
instructive), wherein it was observed:
"18. A person not only suffers injuries on account
of accident but also suffers in mind and body on
account of the accident through out his life and a
feeling is developed that his no more a normal
man and cannot enjoy the amenities of life as
another normal person can. While fixing
compensation for pain and suffering as also for
loss of amenities, features like his age, marital
status and unusual deprivation he has undertaken
in his life have to be reckoned..."
(emphasis added)
16. Therefore, in view of the above decision, Rs. 1,50,000/- is given on
account of pain and suffering and loss of amenities of life.
17. Accordingly, the revised computation is as under:
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Sr. Heads Awarded by the Awarded by
No. Tribunal this Court
PECUNIARY LOSS
1 Expenditure on Medical Bills Rs. 5,000/- Rs. 5,000/-
(A)
2 Expenditure on conveyance Rs. 7,000/- Rs. 7,000/-
(B)
3 Expenditure on special diet Rs. 7,000/- Rs. 7,000/-
(C)
4 Expenditure on nursing Rs. 5,000/- Rs. 5,000/-
attendant (D)
5 Income of injured (E) Rs.7,020/- Rs. 7,020/-
6. Add: Future prospects (F) - Rs. 2,808/-
8 Functional disability (H) 50% 70%
9 Loss of income/Wages (I) Rs. 42,120/- Rs. 42,120/-
[Rs.7,020 x 6]
10 Loss of future income/future Rs.7,58,160/- Rs. 14,85,995/-
earnings [(E+F) x 12 x G x (rounded off)
H] = (J)
NON-PECUNIARY LOSS
11 Pain and suffering (K) Rs. 60,000/- Rs. 1,50,000/-
12 Loss of amenities of life (L) Rs. 60,000/- Rs. 1,50,000/-
13 Total compensation (A + B + Rs. 9,44,280/- Rs. 18,52,115/-
C + D + I + J+ K + L) = M
14 Interest awarded 12% 12%
18. Enhanced compensation of Rs. 9,07,835/-, along with interest at the
rate of 12% per annum from the date of filing will be deposited before the
Tribunal within 4 weeks.
19. An amount of Rs. 2,00,000/- will be released from the enhanced
amount deposited. The balance enhanced amount along with accrued
interest, shall be kept in Fixed Deposit Receipts (FDRs) of Rs. 15,000/-
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each for periods of 1 month, 2 months, 3 months and so on, in succession as
maybe calculated. The interest accruing on the said FDRs shall be credited
to the designated Savings Bank Account of appellant/injured claimant. The
amount of FDRs on maturity would be released to the Savings Bank
Account of appellant/injured claimant upon due verification.
20. In view of the above, appeal stands allowed.
21. Appeal is, accordingly, disposed of. Pending applications, if any, are
rendered infructuous.
22. Order be uploaded on the website of this Court.
ANISH DAYAL
(JUDGE)
MARCH 19, 2026/RK/sp
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