Delhi High Court
Iffco Tokio General Insurance Co Ltd vs Rajesh & Ors on 19 June, 2025
IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on : 19.06.2025
+ MAC.APP. 663/2018 & CM APPL. 28787/2018
IFFCO TOKIO GENERAL INSURANCE
CO LTD ..... Appellant
versus
RAJESH & ORS ..... Respondents
+ MAC.APP. 233/2019
RAJESH ..... Appellant
versus
IFFCO TOKIO GENERAL INSURANCE CO
LTD & ORS ..... Respondents
Advocates who appeared in this case:
For the Appellant(s) : Ms. Suman Bagga, Adv. for the appellant
in MAC.APP. 663/2018.
Mr. Manish Batra and Mr. Pawan Kumar
Kashyap, Advs. for the appellant in
MAC.APP. 233/2019.
For the Respondent(s) : Mr. Manish Batra and Mr. Pawan Kumar
Kashyap, Advs. for R-1 in MAC.APP.
663/2018.
Ms. Suman Bagga, Adv. for R-1 in
MAC.APP. 233/2019.
Signature Not Verified
Signed By:SANJAY
KUMAR MAC.APP. 663/2018 & MAC.APP. 233/2019 Page 1 of 19
Signing Date:24.06.2025
16:14:43
CORAM
HON'BLE MR JUSTICE AMIT MAHAJAN
JUDGMENT
1. The present cross-appeals are filed challenging the award dated
23.04.2018 (hereafter ‘impugned award’), passed by the learned
Motor Accident Claims Tribunal, in MAC Petition No. 4548/16 (Old
MACP No. 29T/14).
2. The brief facts of the case are that on 24.09.2013, when the
motorcycle driven by Rustam (since expired), on which the injured
Rajesh was riding as a pillion rider, reached at Traffic Intersection,
Mahindra Park, heading towards Azadpur, Delhi, one Truck which
was being driven in a rash and negligent zig zag manner came and hit
the motorcycle. As a result of the collision, the victims fell down and
the victim Rustam was crushed under the wheels of the offending
vehicle. The victim Rajesh sustained grievous injuries. The offending
vehicle was being driven by the respondent Shiv Bahadur and the
same is said to be owned by the respondent Shyam Lal Katana. An
FIR was registered for offences under Sections 279/337/304A of the
Indian Penal Code, 1860 (‘IPC‘) in relation to the incident.
3. The learned Tribunal, by the impugned award, disposed of the
claim on behalf of the victim Rajesh as well as the claim field by the
parents of the deceased victim Rustam. After considering the FIR and
filing of chargesheet as well as the testimony of the victim Rajesh, it
was found that the victim Rajesh had sustained grievous injuries due
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KUMAR MAC.APP. 663/2018 & MAC.APP. 233/2019 Page 2 of 19
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to the negligence on part of the driver of the offending vehicle. The
learned Tribunal awarded a compensation of ₹18,51,100/- along with
interest at the rate of 9% per annum with effect from the date of filing
of the claim petition (that is, 27.11.2013) against the owner and driver
of the offending vehicle jointly and severally. Out of the total amount,
₹1,91,090/- was awarded towards medical expenses, ₹2 lakhs was
awarded towards pain and suffering and loss of amenities of life
respectively, ₹25,000/- was awarded towards conveyance, special diet
and attendant charges and ₹12,35,052/- was awarded towards loss of
future income. It was further observed that since the insurance
company had not adduced any material to show that the insurance
policy was breached, it was liable to pay the compensation amount as
it was liable to indemnify the insured.
4. Aggrieved by the same, the insurance company filed the appeal,
bearing, MAC.APP. 663/2018, seeking reduction in the awarded
compensation. In the said appeal, the victim filed a cross objection for
enhancement of compensation, which was directed to be treated as a
separate appeal by this Court by order dated 30.01.2019. The cross
appeal was numbered as MAC.APP. 233/2019.
5. The learned counsel for the victim submitted that the learned
Tribunal has awarded less amount under the heads of pain and
suffering, loss of amenities of life, conveyance, special diet, attendant
charges and loss of future income.
6. He submitted that the learned Tribunal has erred by computing
loss of income on the basis of the minimum wages for a skilled worker
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Signed By:SANJAY
KUMAR MAC.APP. 663/2018 & MAC.APP. 233/2019 Page 3 of 19
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without considering the salary slips as well as identity card of the
victim, which are part of the chargesheet and Detailed Action Report
(‘DAR’).
7. He submitted that the compensation towards pain and suffering
and loss of general amenities should be enhanced as the victim has
suffered 77% disability in both his lower limbs. He submitted that the
victim has undergone great mental shock on account of his injuries
and his disability is extensive, which is bound to hinder his quality of
life.
8. He further submitted that paltry sums have been awarded
towards conveyance and special diet by the learned Tribunal, even
after noting that the victim would have needed a rich protein diet and
used conveyance for the duration of his treatment. He submitted that
the commute was expensive for the victim as he can no more ride a
two-wheeler like earlier. He further submitted that a meagre amount of
merely ₹10,000/- has been awarded for attendant charges without
appreciating the extent of injuries suffered by the victim as well as the
special care required for the same.
9. On the other hand, the learned counsel for the insurance
company submitted that compensation should not be a source of profit
for the injured victim and the learned Tribunal ought to have taken a
more equitable approach.
10. He submitted that the learned Tribunal erred in awarding a
compensation of ₹2 lakhs each under the head of pain and suffering
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KUMAR MAC.APP. 663/2018 & MAC.APP. 233/2019 Page 4 of 19
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and loss of amenities of life. He submitted that the compensation
under these heads is excessive and on the higher side.
11. He further submitted that the learned Tribunal assessed the
functional disability on the higher side and the same should not have
been more than 40% as the victim suffered no loss of income during
the course of his treatment. He submitted that the minimum wage of
unskilled worker ought to have been taken into account while
computing loss of future income as the victim did not establish his
employment as a technician.
12. He submitted that the documents annexed with the charge sheet
cannot be read into evidence and the insurance company is only
supposed to conduct cross-examination on the basis of evidence led by
victim. He submitted that there is no mention of salary in the evidence
by way of affidavit. He submitted that the said documents were not
exhibited before the learned Tribunal and the employer of the victim
was not summoned either.
13. He further submitted that the learned Tribunal has taken note of
the submission on behalf of the counsel for the victim that the
minimum wage be taken into account as no proof of salary was
produced.
ANALYSIS
14. The short question before this Court is whether appropriate
compensation has been awarded to the victim and if the same ought to
be enhanced or reduced.
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KUMAR MAC.APP. 663/2018 & MAC.APP. 233/2019 Page 5 of 19
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15. It is well-settled that the amount of compensation awarded
under the MV Act should be just and, to the extent possible, should
fully and adequately restore the claimant to a position as existed prior
to the accident. The object being to make good the loss suffered as a
result of the accident in a fair, reasonable and equitable manner. In
cases of personal injury, compensation is normally categorised as :–
Pecuniary damages (Special Damages):
(i) Expenses relating to treatment, hospitalization, medicines, transportation,
nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he
not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General Damages)
(iv) Damages for pain suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
16. In routine personal injury cases, compensation is awarded only
under heads (i), (ii)(a) and (iv). It is only in serious cases of injury,
where there is specific medical evidence corroborating the claim of the
claimant, that compensation is granted under any of the heads (ii)(b),
(iii), (v) and (vi) relating to loss of future earnings on account of
permanent disability, future medical expenses, loss of amenities
(and/or loss of prospects of marriage) and loss of expectation of life
[Ref: Raj Kumar v. Ajay Kumar : (2011) 1 SCC 343].
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KUMAR MAC.APP. 663/2018 & MAC.APP. 233/2019 Page 6 of 19
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17. By its very nature, when a tribunal or court is tasked with
determining the amount of compensation in accident cases, it
inevitably involves a degree of estimation, hypothetical assessments,
and a measure of compassion related to the severity of the disability
sustained. However, all these factors must be evaluated with objective
standards.
18. In the present case, both the victim and the insurance company
are aggrieved by the compensation awarded under the head of loss of
future income. The insurance company is challenging both the
assessment of the victim’s income as well as the assessment of
functional disability, while the victim is only challenging the
computation of his income on the basis of minimum wages for a
skilled worker. The insurance company and the victim have both
challenged the compensation awarded towards pain and suffering as
well as loss of amenities as well. Furthermore, the victim is aggrieved
by the compensation towards conveyance, special diet and attendant
charges as well.
19. Upon careful consideration of the rival submissions and perusal
of the impugned award, this Court finds merit in the appeals of both
the appellant and the insurance company to a limited extent.
Assessment of income
20. It is argued on behalf of the victim that his income should have
been assessed on the basis of the victim’s identity card that was part of
the chargesheet and DAR. It is further argued that the salary slips of
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Signed By:SANJAY
KUMAR MAC.APP. 663/2018 & MAC.APP. 233/2019 Page 7 of 19
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the victim were also part of the record which show his monthly
income as ₹21,053/-.
21. On the other hand, it is argued on behalf of the insurance
company that the counsel for the victim had conceded before the
learned Trial Court that in absence of any proof of salary, the salary of
the victim be assessed on the basis of the minimum wages. It is further
argued that the minimum wages of an unskilled worker ought to be
considered instead.
22. This Court has perused the identity card of the victim which
states that he is working at the designation of a “Technician” in Rajiv
Gandhi Cancer Institute and Research Centre as well as the salary
slips showing his income as ₹21,053/- which are a part of the Lower
Court Record. The same lends credibility to the deposition of the
victim’s evidence where he had stated that he was employed as a
technician.
23. It is argued on behalf of the insurance company that the said
material cannot be read as evidence and the same was never subjected
to cross-examination.
24. Apart from the procedural anomaly in not exhibiting this
evidence and not examining the employer of the victim, no other
argument has been raised to contest the veracity of the same.
25. It is pertinent to note that the standard of proof in claim
petitions is of preponderance of probability and it is not imperative for
an employee to examine his employer to prove his employment. The
salary slips of four months are sufficient in this respect.
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KUMAR MAC.APP. 663/2018 & MAC.APP. 233/2019 Page 8 of 19
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26. It is pertinent to note that the victim had deposed that he was
employed as a technician with Rajiv Gandhi Cancer Hospital and his
salary was not deducted for his period of absence, although his leaves
had been exhausted. The assertion in relation to his employment was
only discarded on account of absence of evidence. The said material
was clearly not brought to the notice of the learned Tribunal or
perused by the learned Tribunal before assessing the income of the
victim.
27. While it is correct that the counsel of the victim had conceded
to the calculation of income on the basis of minimum wages, it cannot
be ignored that MV Act is a beneficial legislation and the Act is
designed to relieve victims from ensuring strict compliance of
provisions.
28. The veracity of the said documents has not been disputed by the
insurance company before this Court and the only objection has been
in relation to whether the Court can consider the said documents if
they were not exhibited.
29. In its capacity as an Appellate Court, this Court is empowered
to take note of additional evidence. This Court thus considers it
apposite to take judicial notice of the aforesaid documents, especially
considering they were part of the DAR, as the same have a direct
bearing on the case and removes the need for any guess work by the
Court on this aspect.
30. In view of the aforesaid discussion, this Court considers it
apposite to direct the learned Tribunal to reassess the income of the
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KUMAR MAC.APP. 663/2018 & MAC.APP. 233/2019 Page 9 of 19
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victim by considering the aforesaid documents and taking note of the
observations made by this Court. Although the documents have not
been disputed by the insurance company before this Court, in the
interests of justice, it is open to the insurance company to seek cross-
examination of the victim on the limited aspect of veracity of these
documents, if so required.
Assessment of disability
31. The insurance company is aggrieved by the computation of the
victim’s functional disability as 50%.
32. The Hon’ble Apex Court, in the case of Raj Kumar v. Ajay
Kumar : (2011) 1 SCC 343, had considered the effect of permanent
disability on actual earning capacity. It was held that the Tribunal
should first ascertain the activities the claimant was carrying on prior
to the accident and the effect of the disability on the activities he is
likely to carry on in future. The nature of work before the accident and
also the age of the victim were held to be relevant factors.
33. In Raj Kumar v. Ajay Kumar (supra) the Hon’ble Apex Court
gave an example that where the injured is a driver and suffers a
permanent disability in the nature of amputation of his hand, the
functional disability of the injured should be taken as loss of earning
capacity at 100% of the permanent disability.
34. The Hon’ble Apex Court in Jagdish v. Mohan : (2018) 4 SCC
571, while discussing the seriousness of the disability in respect of the
vocation of the injured, who is a carpenter, observed as under:
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KUMAR MAC.APP. 663/2018 & MAC.APP. 233/2019 Page 10 of 19
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“14. In making the computation in the present case, the
court must be mindful of the fact that the appellant has
suffered a serious disability in which he has suffered a loss
of the use of both his hands. For a person engaged in
manual activities, it requires no stretch of imagination to
understand that a loss of hands is a complete deprivation of
the ability to earn. Nothing–at least in the facts of this
case–can restore lost hands. But the measure of
compensation must reflect a genuine attempt of the law to
restore the dignity of the being. Our yardsticks of
compensation should not be so abysmal as to lead one to
question whether our law values human life. If it does, as it
must, it must provide a realistic recompense for the pain of
loss and the trauma of suffering. Awards of compensation
are not law’s doles. In a discourse of rights, they constitute
entitlements under law. Our conversations about law must
shift from a paternalistic subordination of the individual to
an assertion of enforceable rights as intrinsic to human
dignity.
15. The Tribunal has noted that the appellant is unable to
even eat or to attend to a visit to the toilet without the
assistance of an attendant. In this background, it would be
a denial of justice to compute the disability at 90%. The
disability is indeed total. Having regard to the age of the
appellant, the Tribunal applied a multiplier of 18. In the
circumstances, the compensation payable to the appellant on
account of the loss of income, including future prospects,
would be Rs 18,14,400…”
(emphasis supplied)
35. This Court in Cholamandalam MS General Ins. Co. Ltd. v.
Ram Kishan : 2018 SCC OnLine Del 10001, assessed the percentage
of functional disability of the injured claimant even more than the
permanent disability sustained by him. It was held as under:
“7. It has also come in the additional evidence of Dr. Adarsh
Kumar that Injured is susceptible to frequent infection and he
will frequently need medical consultation and due to theSignature Not Verified
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KUMAR MAC.APP. 663/2018 & MAC.APP. 233/2019 Page 11 of 19
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deformity appearing in the abdomen of the Injured, he is
not likely to perform normal labour work. It is relevant to
note that the Injured was a labourer and now due to this
accident, he can only do desk job for which he is not
qualified. It has also come in the additional evidence that
there is a possibility of improvement of functional disability
after the proposed surgery and Injured may not require the
urine bag for his urine collection after the surgery.
Although, the permanent disability of the Injured has now
been re-assessed to be 27%, but in the face of additional
evidence, the functional disability suffered by the Injured
due to this accident is assessed as 70%.”
(emphasis supplied)
36. As noted above, the victim is employed as a technician in a
Hospital. From the victim’s deposition, it is clear that he has not lost
his job on account of the accident.
37. It is undisputed that the victim had suffered 77% permanent
disability in both his lower limbs. The victim had deposed that he
underwent intensive care, including multiple surgeries on his right
knee and surgical implants were embedded in the said knee. He further
deposed that he had to move throughout his life with the support of a
leg guard or orthopaedic stick as his left knee had been permanently
paralysed. During cross-examination, no questions were put to the
victim by the insurance company on this aspect and the deposition of
the victim is thus unrebutted in relation to the extent and nature of the
injuries suffered by him. The Disability Certificate of the victim (Ex.
PW 1/C) also evidences that the victim had suffered 77% permanent
disability in relation to both lower limbs which was not likely to
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KUMAR MAC.APP. 663/2018 & MAC.APP. 233/2019 Page 12 of 19
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improve. It is also mentioned that the case of the victim was one of
post traumatic weakness in left knee and stiffness in right knee.
38. The victim has further deposed that he had been working in the
Hospital for 15 years and he was likely to be promoted, however, due
to his physical deformity, his promotion had been altogether declined.
It is important to note that the role of a technician requires significant
movement around and across different locations. While no proof of
loss of promotion has been adduced by the victim, however,
considering the nature of his vocation and reduced mobility, it cannot
be denied that the disability of the victim is permanent in nature and it
will impact his employment and future prospects. The victim was only
37-38 years of age at the time of the incident and had the potential for
significant growth.
39. In the present case, the physical disability of the victim is 77%
in both his lower limbs. In the opinion of this Court, the functional
disability will be lower than 50% as the victim will continue in his
employment but in a lower grade owing to his disability.
40. It is pertinent to note that in the absence of clear evidence to
indicate the impact of permanent disability on the earning capacity of
the victim, Courts and Tribunals generally assess the functional
disability of the victim to be approximately half of the permanent
disability suffered by the victim. For this reason, the Hon’ble Apex
Court in the case of Raj Kumar v. Ajay Kumar (supra) while noting
that there existed no clear evidence to indicate the impact of
permanent disability suffered by the victim on his functionality and
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earning capacity, however, considering that the same would impede
his smooth functioning, had assessed the functional disability of the
body as 25% where the victim suffered a permanently disability of
45% with respect to the left lower limb.
41. This Court in a catena of decisions, including a recent decision
in the case of Rajender Singh v. Bajaj Allianz General Insurance Co.
Ltd. : 2024 SCC OnLine Del 8839, while noting that the victim had
failed to lead evidence to show the impact of permanent disability on
his earning capacity, had upheld the assessment of 33% functional
disability where the victim had suffered permanent disability of 66%
by considering the nature of injuries and the general impact of the
disability on the functioning of the victim.
42. In the present case, as discussed above, the impact of the
victim’s injuries on the lower limbs on his mobility and earning
capacity cannot be understated. Considering that the victim has
suffered physical disability of 77%, in the opinion of this Court, it
would be appropriate to assess the functional disability of the
appellant as 40%.
Conveyance, Special Diet and Attendant Charges
43. The learned Tribunal has awarded a compensation for a sum of
₹5,000/- on account of conveyance charges and of ₹10,000/- each for
special diet and attendant charges. It was observed by the learned
Tribunal that since no definite evidence had been led by the victim in
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this respect, it would be apposite to award notional amounts under
these heads.
44. It has been rightly appreciated by the learned Tribunal that the
victim would need a protein rich diet for recovery and he would have
used the facility of conveyance for visiting the hospital from time to
time. It was also noted that the victim would have also required help to
perform daily activities and also while visiting hospital during his
treatment. Despite the same, paltry amounts have been awarded under
the aforesaid heads.
45. As noted above, the victim suffered 77% disability in both his
lower limbs for which he had to undergo intensive care, including
multiple surgeries on his right knee. The victim had deposed that he
remained hospitalized for 6-7 days and he was unable to perform his
daily chores. He deposed that he was absent from his duties till
16.01.2014. He further deposed that a domestic help had to be hired
and he had to spend significantly towards special care. No question
was put to the victim during his cross-examination to dispute that he
lost normal movement and was unable to perform normal daily chores.
As the victim has suffered disability in both his lower limbs and has to
use a leg guard for his left knee, this Court is also inclined to accept
the submission that he would find it difficulty in commuting via two-
wheeler vehicles. The victim underwent a number of operations due to
which he would have also required a nutritious diet for post-surgery
recovery.
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46. While there is no mention of any person being specifically
being employed only to assist the victim, however, the victim has
deposed that his wife had to quit running a beauty parlor from home as
a result of the accident. The nature of the injuries suffered by the
victim are such that the victim would have undoubtedly required
assistance in performance of daily chores, for post-surgery care and
also for frequenting the hospital for close to three and a half months,
that is, till he was able to rejoin the office. Certain medical bills
adduced by the victim also evidence that he was undergoing treatment
for his injuries and physiotherapy till December, 2013. Thus, the
attendant charges ought to be granted for three months during which
the victim would have required assistance for performing basic chores.
47. A Coordinate Bench of this Court in the case of Sumer v.
National Ins Co. Ltd. : 2023 SCC OnLine Del 5533, wherein the
physical disability was assessed at 50%, had enhanced the
compensation towards the cost of attendant charges by observing that
compensation ought to be awarded towards contribution made by the
family members in taking care of the claimant. The relevant portion of
the said judgement is reproduced hereunder:
“33. The appellant challenges the Impugned Award in-so-far
as it awards compensation of only Rs. 10,000/- to the
appellant towards attendant charges.
34. The learned counsel for the appellant submits that
looking into the nature of the injury suffered by the appellant,
the appellant would require an attendant. He submits that the
family members of the appellant are looking after the
appellant, however, that cannot be a reason for denying the
compensation to the appellant towards the attendant charges.
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35. On the other hand, the learned counsel for the
respondent no. 1 submits that, in fact, the appellant had not
claimed any amount towards the attendant charges in the
Claim Petition, nor had the same been proved. The
appellant has also been granted Rs. 75,000/- for pain,
suffering and trauma, and Rs. 50,000/- towards amenities.
He submits that, therefore, there is no justification for
enhancing the compensation payable towards the attendant
charges.
36. I have considered the submissions made by the learned
counsels for the parties.
37. Keeping in view the nature of injuries suffered by the
appellant, it cannot be said that the appellant would require
a permanent attendant. At the same time, he would certainly
require some help on a regular basis, especially because of
the amnesia suffered by him, as also because of hemiplegia
suffered in his left upper and lower limb. The compensation
awarded to the appellant of only Rs. 10,000/- towards
attendant charges, therefore, appears to be highly
inadequate. Though, the appellant may be taking the
services of his own family members, who may be
performing the same gratuitously, compensation should
still be awarded in favour of the appellant for the
contribution made by the family members. Accordingly, the
compensation on account of the attendant charges is
enhanced to Rs. 2 lakhs.”
(emphasis supplied)
48. Even though no proof regarding the expenses incurred for
conveyance, special diet or attendant charges was placed on record in
the present case either, considering the surgical procedures undergone
by the victim, the nature and extent of his disability as well as the
duration of time after which he was able to resume employment, in the
opinion of this Court, the compensation amount needs to be increased.
The compensation for conveyance is enhanced to ₹20,000/-, the
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compensation for special diet is enhanced to ₹20,000/- and the
compensation towards attendant charges is enhanced to ₹30,000/-.
Pain and Suffering & Loss of Amenities
49. It is argued on behalf of the victim that a meagre sum is
awarded towards pain and suffering as well as loss of amenities. On
the other hand, it is argued on behalf of the insurance company that
the compensation awarded for the aforesaid heads is on higher side.
50. The learned Tribunal had essentially taken into account the
extent of disability suffered by the victim and noted that the victim
would have been confined to his residence due to the same.
51. It is pertinent to note that the victim has been disabled for life at
the age of 37-38 years and he has suffered permanent disability of
77% in both his lower limbs. Due to the disability, the victim will be
unable to enjoy his life freely as his mobility has suffered due to the
incident. This Court thus finds no reason to reduce or enhance the
awarded amount.
52. In the opinion of this Court, the compensation of ₹2,00,000/- as
awarded by the learned Tribunal under the aforesaid heads is adequate
and warrants no interference.
CONCLUSION
53. Keeping in view the facts and circumstances of the case, the
appeals are partly allowed. The matter is remanded back to the learned
Tribunal for the limited purpose of re-determining the compensation
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by (i) recomputing the loss of future income by considering the
victim’s functional disability at 40% and reassessing the victim’s
income in line with the observations made by this Court; and (ii)
enhancing the compensation for conveyance, special diet and
attendant charges in view of the observations by this Court.
54. The findings of the Tribunal on all other issues are affirmed and
shall remain undisturbed.
55. The learned Tribunal shall undertake this re-computation
expeditiously, preferably within a period of four weeks from the date
of the first listing of the Claim Petition before the learned Tribunal on
remand.
56. The parties shall appear before the learned Tribunal on
07.07.2025.
57. The compensation amount so determined, on remand, shall be
released in favour of the appellant in accordance with the schedule of
disbursal which will be stipulated by the learned Tribunal.
58. It is also directed that the amount lying deposited with this
Court be transferred to the concerned Tribunal.
59. The present appeals are partly allowed in the aforesaid terms.
60. A copy of this judgment be placed in both the matters.
AMIT MAHAJAN, J
JUNE 19, 2025
Signature Not Verified
Signed By:SANJAY
KUMAR MAC.APP. 663/2018 & MAC.APP. 233/2019 Page 19 of 19
Signing Date:24.06.2025
16:14:43