Delhi High Court
Dhawani Sharda vs Ashok Kumar & Ors (National Insurance Co … on 24 July, 2025
$~12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 24.07.2025
+ MAC.APP. 163/2019
DHAWANI SHARDA .....Appellant
Through: Mr. S.N. Parashar, Advocate.
versus
ASHOK KUMAR & ORS (NATIONAL INSURANCE
CO LTD ) .....Respondents
Through: Mr. Manoj Ranjan Sinha & Mr.
Vishal Agrawal, Advocates for R-3.
CORAM:
HON'BLE MS. JUSTICE TARA VITASTA GANJU
TARA VITASTA GANJU, J.: (Oral)
1. The present Appeal has been filed on behalf of the Appellant under
Section 173 of the Motor Vehicles Act, 1988 against the judgment dated
02.08.2018 [hereinafter referred to as “Impugned Order”] passed by learned
Presiding Officer, MACT, North West District, Rohini Courts, Delhi. The
challenge in the present Appeal is for enhancement of the amount of
compensation awarded in the sum of Rs.37,96,000/- along with 9% interest
per annum to the injured/Appellant by the learned Tribunal.
2. Learned Counsel for the Appellant submits that he restricts his
challenge in the present Appeal to one ground, that is, of reduction of
disability of the Appellant. Learned Counsel submits that a disability
certificate was produced before the learned Tribunal, wherein it is set out
that there was a permanent disability of about 50%, despite which the
learned Tribunal has reduced the disability to 20%.
2.1 Learned Counsel for the Appellant submits that the Appellant had
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filed a detailed Affidavit (Ex. PW1/A) before the learned Tribunal setting
out that she can neither sit, stand, walk or squat for extended periods of time.
The Appellant has also stated therein that she is unable to walk, sit or squat
on account of her spinal injuries and not able to work at present. It is further
stated therein that the Appellant cannot drive a car either. The Appellant has
also set out therein that she is required to expend amounts now to engage a
driver and on her medicines as well, and that she is unable perform her job.
2.2 Learned Counsel seeks to rely upon the cross-examination of the
Appellant (PW-1) in this behalf as well, wherein it is stated that although the
Appellant had rejoined her services in April, 2013, after a few months of the
accident, she had to resign in October, 2013 on account of the injuries
sustained in the accident.
2.3 Lastly, it is contended by the learned Counsel for the Appellant that
the Appellant had placed on record, in addition to her evidence, the
disability certificate, as well as, had produced the Neurosurgeon from
IHBAS, whose statement was recorded before the learned Tribunal. It is
submitted that despite all this evidence, the finding of the learned Tribunal
was to the extent of reducing the functional disability from 50% to 20%.
3. Learned Counsel for Respondent No.3/Insurance Company contends
that in view of the fact that the Appellant rejoined her services from April to
October, 2013, it showed that the Appellant was fit for working, and thus,
the functional disability was correctly reduced by the learned Tribunal.
3.1 Learned Counsel further submits that the Appellant was standing in
the Court to give evidence as can be seen from the record.
4. Briefly the facts are that on 10.11.2012, the injured/Appellant along
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with her father and daughter was travelling to Chandigarh in her car and
around 7:30 AM, their car was hit on the rear side by a truck. The Appellant
sustained serious injuries and was admitted to hospital, and thereafter, was
shifted to the Indian Spinal Injuries Centre, Vasant Kunj, New Delhi, where
she was admitted for about a month. Due to the injuries suffered, the
Appellant became disabled to the extent of 50% in respect of her locomotor
system and neurological system and sustained weakness in both her arms
and legs. A criminal case was registered against the driver of the offending
truck for rash and negligent driving.
4.1 As stated above, the Appellant produced her evidence as well as the
evidence of her employer (PW-2) including the disability certificate (Ex.
PW-4/1) of the doctor in this behalf. The Appellant has stated in her
Affidavit that prior to the accident, she was an able-bodied person and she
was capable of driving a car and used to work in a company called M/s A.A.
Associates as an Area Sales Manager and was getting a salary of Rs.55,000/-
per month.
4.2 The Appellant has further averred that after the accident, she had not
been able to continue with her services and instead had to engage a driver to
drive a car at the rate of Rs.12,000/- per month as well as an attendant for a
period of two years after the accident. The Appellant has also deposed that,
because of the accident, she is unable to conceive and cannot even go about
performing her daily routine tasks.
4.3 Paragraphs 6, 7 and 8 of the evidence of Appellant (PW-1) are set out
below:
“6. That the deponent was possessing a very good health and physique at
the time of accident, at the time of accident, the deponent was doing herSignature Not Verified
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Priyate Job with A.A. Associate, 10, Visawa, Utkatsha Co-Op. HSG Soc.,
State bank of Colony, Maharashtra, as area sales manager at Delhi and
her salary Rs.55,000/- p.m. at the time of accident. It is also mentioned
here that the deponent has to resign from the above said company due to
sustained grievous Spinal injuries in this accident and she is unable to
walk, sit and squatted as well as restricted to movement of body on
account of spinal injuries not even this she is not capable to do work at
present. It is also submitted that at the time of accident the deponent
driving the Car and having valid driving license but at present at present
is unable to drive any vehicle on account of this injuries, it is also
mentioned here that she has to engaged a driver on his car for her
personal works as well as Hospitals to take medicine and she is giving
salary Rs.12,000/- p.m. to the driver as yet. Therefore, the deponent is
suffered a lot of losses towards income/future prospectus income, an
account of the injuries in the said accident. The deponent engaged a
Attendant for daily routine work complete two years and she had given
salary Rs. 5000/- per month to the attendant to the above said period.
7. That the deponent is married wife about 27 Years at the time of
accident and she is unable to conceived pregnancy as well as also facing
problems to release Urine and Stool also as well as she cannot make grip
on hand and at present she is also suffering from breathing problem
because her lungs got comprised during this accident till date. The
deponent suffered a lot of problems in her future as her daily routine
work has been badly affected as per the doctor advice, the deponent took
physiotherapy treatment from the doctor Sh. Randhir Lal Ranjan at 69,
Sector-1, Pocket-1, Dwarka New Delhi after discharge from the hospital
for the period of 02 years and she has spent Rs.1,00,000/- towards
physiotherapy treatment, the attested copy of the physiotherapy as well
as other expenses will are annexed with affidavit. It is also submitted
here that the deponent has not suffered any financial loss on account of
the injuries sustained by her but the injuries certainly have put him under
mental agony and physical pain and suffering from long time.
8.. That the deponent suffered permanent disability above 50% in her
whole body. The Disability Certificate Issued by IHBAS Hospital, Delhi,
which is placed on the file.”
4.4 In addition, the evidence of PW-2, the Manager of the Appellant has
proved the salary of the Appellant. The Manager also deposed as to the dates
of leave of the Appellant and that she had to resign from her services.
4.5 The Appellant also placed on record the certificate of disability (Ex.
PW-4/1) dated 02.10.2024, which sets out the following:
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“The patient Dhawani Sharma was examined by the Disability Medical
Board for neurological disabilities at IHBAS on 29.09.2014. Patient is a
case of cervical spine injury due to road traffic accident in November
2012 and operated for cervical spine fixation at private hospital (on
12.11.2012). At present, patient is quadriparetic (Grade 4/5) below C-5
level and her neurological disability is about 50%.”
4.6 In addition, the Appellant also produced the examining Doctor [PW-
4] who has proved the disability certificate and deposed that the Appellant
sustained permanent disability of about 50% in the locomotor system and
neurological system. The Doctor has also deposed that the Appellant has
sustained weakness in both her arms and legs and has difficulty in
performing normal routine activities.
5. The disability certificate of the Appellant is not disputed and is
proved in accordance with law. However, the learned Tribunal has given a
finding that since the Appellant has rejoined her previous job on 01.04.2013
and continued to work till 05.10.2013, she may have faced some difficulty
but the Appellant was not prevented or restricted from discharging her
previous functions. This finding relies on the fact that the Appellant was not
forced to either resign or was expelled from her services because of the
accident. Thus, the learned Tribunal has deemed it apposite to reduce the
functional disability of the Appellant to 20%. The relevant extract of the
Impugned Order is set out below:
“PW2 who was a manager from said A.A. Associates deposed in
his cross examination that as per report, the petitioner remained on leave
from 11.11.12 to 31.03.2013, she rejoined her duties on 01.04.2013, she
remained with the company till 05.10.2013 and thereafter she resigned
from her services,
There is nothing on record to suggest that due to the injuries
sustained in the accident, the petitioner was prevented or restricted
from discharging her previous activities and functions and rather, it
has been proved on record that she after her accident on 10.11.2012Signature Not Verified
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she rejoined her duties on 01.04.2013 and continued till 05.10.2013. It
would show that she rejoined her duties after about 5 months of the
accident and in fact continued for about 6 months in her previous job
and thereafter resigned from her services. There is nothing on record to
suggest that she was either expelled or forced to resign from her service
by the said company due to her accident. No question in this regard has
been put by the petitioner to PW2. On the contrary, PW2 has specifically
deposed in his cross examination that she rejoined her duties on
01.04.2013, was with the company till 05.10.2013 and thereafter she
resigned from her service. PW1 in her cross examination has also
deposed that she was not removed from her duty by her employer.
In the said circumstances, due to the said permanent disability,
she would have faced some difficulty while doing her previous work but
the petitioner was not prevented or restricted from discharging her
previous activities and functions.
In view of above discussion, the injuries suffered by the petitioner
and her nature of work, the functional disability of the petitioner in
relation to her whole body and the effect of permanent disability on her
actual earning capacity is taken as 20%.
The copy of passport and PAN card of petitioner is on record
which mentions her date of birth as 08.05.1985 which shows that the
petitioner was aged about 27 years 6 months at the time of accident.”
[Emphasis Supplied]
6. As stated above, the Appellant proved, basis of the Doctor’s
certificate as well the evidence, that her disability was 50%. It was proved
on record that she had reduced functioning in both her arms and legs. The
Appellant had deposed that she is not able to drive a car and go about her
routine activities in the manner she was.
7. The law on functional disability and how it has to be ascertained has
been discussed by the Supreme Court. In the case of Aabid Khan v. Dinesh
and Ors.1, the Supreme Court held that the Tribunal or High Court cannot
give a finding of reduction of the disability without giving cogent reasons
1
(2024) 6 SCC 149
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and in the absence of any contrary evidence available on record. The
relevant extract of Aabid Khan case is below:
“5. Perusal of the award passed by the tribunal as modified by the High Court,
would reveal that claimant had sustained compound fracture in the left
acetabulum and left rib. Dr. Alok Mehta (PW-5), who had examined the claimant
had deposed that whole body disability suffered by the claimant was to the
extent of 17% and this fact has been elicited in the cross-examination. However,
the tribunal computed the compensation towards loss of future income by
considering the whole body disability at 10%. On surmises and conjectures the
percentage of disability has been reduced. No reason whatsoever has been
assigned by the tribunal for substituting its opinion to that of the expert
opinion namely, the doctor who treated the claimant and examined as PW-5.
6. This Court in the case of Raj Kumar v. Ajay Kumar and Another, (2011) 1
SCC 343 has observed:
“16. The Tribunal should not be a silent spectator when medical evidence is
tendered in regard to the injuries and their effect, in particular, the extent of
permanent disability. Sections 168 and 169 of the Act make it evident that the
Tribunal does not function as a neutral umpire as in a civil suit, but as an
active explorer and seeker of truth who is required to “hold an enquiry into
the claim” for determining the “just compensation”. The Tribunal should
therefore take an active role to ascertain the true and correct position so that
it can assess the “just compensation”. While dealing with personal injury
cases, the Tribunal should preferably equip itself with a medical dictionary
and a handbook for evaluation of permanent physical impairment (for
example, Manual for Evaluation of Permanent Physical Impairment for
Orthopaedic Surgeons, prepared by American Academy of Orthopaedic
Surgeons or its Indian equivalent or other authorised texts) for understanding
the medical evidence and assessing the physical and functional disability. The
Tribunal may also keep in view the First Schedule to the Workmen’s
Compensation Act, 1923 which gives some indication about the extent of
permanent disability in different types of injuries, in the case of workmen.”
xxx xxx xxx
9. In the light of the afore-stated position of law explained when the medical
evidence tendered by the claimant is perused, we are of the considered view
that tribunal and the High Court committed a serious error in not accepting
the said medical evidence and in the absence of any contra evidence available
on record, neither the tribunal nor the High Court could have substituted the
disability to 10% as against the opinion of the doctor (PW-5) certified at 17%.
In that view of the matter the compensation awarded under the head ‘loss of
income’ towards permanent disability deserves to be enhanced by construing
the whole-body disability at 17%.”
[Emphasis Supplied]
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7.1 In the case of Prakash Chand Sharma v. Rambabu Saini and Anr.2,
it was held that the Tribunal cannot unilaterally question or reduce the
disability percentage without following the proper procedure. The relevant
paragraphs of the abovementioned case are extracted below:
“8. We find force in the submissions of the appellant. The duly constituted
Medical Board has ascertained the permanent disability of the claimant-
appellant to be 100%.
xxx xxx xxx
9. The Tribunal questioned the competence of the Medical Board to assess the
permanent disability of the claimant-appellant, terming the certificate of the
Medical Board as not completely reliable. If the Tribunal had reason to doubt
the medical certificate, the option available before it was to have the disability
re-assessed but it could not have gone into the details of the determination of
disability. Since that course of action has not been adopted, the opinion of the
Medical Board, being an opinion of the experts is to be treated as such. That
apart, the comatose state of the claimant-appellant is not in dispute.”
[Emphasis Supplied]
8. Emphasis was laid by the learned Counsel for the Respondent on the
fact that the Appellant had admitted, in the cross examination of
PW1/Petitioner, that she was standing in Court without any help while
giving evidence, thus she would be able to perform her job/duties.
9. This Court is unable to agree. The Appellant was previously working
in a sales job, although did attempt to continue with her job, but was clearly
unable to do so, and thus, had to resign from the job. The finding of the
Doctor has not been disputed. No doubt, the Appellant was standing in the
Court while giving her evidence, however, this is not something which has
been used by the learned Tribunal in the Impugned Award. The Impugned
Order premises itself on the basis of her rejoining services for a period of
2
2025 SCC Online SC 276
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approximately six months.
10. The deposition of the PW-4 [Doctor] reflects that the permanent
disability of the Appellant is 50% of the locomotive system and the
neurological system. The Appellant had deposed that although she did rejoin
her job, she was not able to perform her duties because of her injuries and
had to resign from her job.
11. The evidence of the Appellant that she could not perform her day-to-
day activities nor conceive nor drive a car has also not been controverted by
the Respondent No.3/Insurance Company.
11.1 It is also not disputed that the accident took place on 10.11.2012 and
Appellant joined her duties only on 01.04.2013, after a few months of being
in recovery. The Appellant was stated to be working as a sales
representative. She has stated that she is unable to drive her car anymore in
view of the accident. She has also stated that she has difficulty in performing
her routine and day-to-day activities including the passage of urine and bowl
movements and is also suffering from breathing issues. No documents or
evidence forms part of the record to controvert this evidence of the
Appellant. The disability was assessed as both physical and neurological.
12. In light of the medical evidence tendered by the Appellant and the
settled principles of law in this behalf, the finding of reduction of the
claimant’s functional disability cannot be sustained.
13. The Appeal is accordingly allowed. The Impugned Award to the
extent that it reduces the functional disability from 50% to 20% is set aside.
The functional disability, as is stated by the Doctor and in the medical
record, shall now be taken as 50%.
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14. The parties shall appear before the learned Tribunal on 20.08.2025 for
re-calculation of the awarded amount in terms of the judgment passed today.
15. The parties shall act based on the digitally signed copy of the order.
TARA VITASTA GANJU, J
JULY 24, 2025/ ha
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