United India Insurance Co Ltd vs Krishan Kumar & Ors
- Court
- Delhi High Court
* IN THE HIGH COURT OF DELHI AT NEW DELHI
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% Reserved on: 15 September 2026
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Pronounced on :29 October 2026
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Uploaded on :30 October 2026
# CNR No. DLHC011128382015
+ MAC.APP. 244/2015
UNITED INDIA INSURANCE COLTD ....Appellant
Through: Mr. Sankar N. Sinha, Advocate
versus
KRISHAN KUMAR & ORS ...Respondents
Through: Ms. Isha Khanna, Advocate with Ms.
Ruchika Malik, and Mr. Suresh Bhati,
Advocates.
# CNR No. DLHC011659852015
+ MAC.APP. 367/2015
KRISHNAN KUMAR @ KINU ....Appellant
Through: Ms. Isha Khanna, Advocate with Ms.
Ruchika Malik, and Mr. Suresh Bhati,
Advocates.
versus
UNITED INDIA INS. CO. LTD. & ORS. ....Respondents
Through: Mr. Sankar N. Sinha, Advocate for R-
1.
CORAM:
HON'BLE MR. JUSTICE ANISH DAYAL
JUDGMENT
ANISH DAYAL, J.
1. These cross-appeals have been filed assailing impugned award dated
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03 January 2015, passed by the Motor Accident Claims Tribunal, Dwarka
Courts, New Delhi [hereinafter, ‘ MACT/Tribunal ’] in MACP No.
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KUMAR CHOUDHARY
Signing Date:30.10.2026
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351/12/14 , whereby compensation of Rs. 10,18,655/- , along with interest at
the rate of 7.5% was awarded, to the injured/claimant, Krishan Kumar .
[hereinafter, ‘ impugned award ’].
2. MAC. APP. 244/2025 has been filed by the Insurance Company
challenging the finding of the MACT, as per which, injured/claimant
suffered grievous injuries in an accident caused by a tyre burst in the
offending vehicle, whereas MAC. APP. 367/2015 has been filed by the
injured/claimant seeking enhancement of the compensation.
The Incident
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3. The alleged accident took place on 15 May 2011, when
injured/claimant was travelling in a bus bearing registration no. DL-1PA-
4172 [hereinafter, ‘ offending vehicle/bus ’], which was being driven by its
driver in a rash and negligent manner. The offending vehicle was driven
over a large stone, leading to the bursting of its tyre and since
injured/claimant was seated above the said tyre, he was struck by a ripped
off aluminium sheet in the bus, resulting in grievous injuries.
Proceedings before the MACT
4. The Insurance Company put forth an alternative version to the
aforesaid facts, alleging that the injury to injured/claimant was caused due to
a cooler falling on the legs of injured/claimant. The Insurance Company also
pointed out that the FIR had been registered after a delay of seven months .
5. The MACT, however, rejected the version put forth by the Insurance
Company and relied upon the medical records as well as the testimony of
injured/claimant, who testified as PW-1 , to conclude that injured/claimant
suffered grievous injuries due to the rash and negligent driving of driver of
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Digitally Signed By:RAHUL
KUMAR CHOUDHARY
Signing Date:30.10.2026
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the offending vehicle.
6. The MACT also observed that delay in lodging the FIR would not, in
itself, detract from the credibility of the testimony of injured/claimant.
Accordingly, liability to pay compensation was fastened upon the Insurance
Company.
Submissions on behalf of Insurance Company
7. The primary contention of Mr. Shankar N Sinha , counsel for
Insurance Company, is that the injuries sustained by injured/claimant were
on account of a water cooler falling on his leg, as opposed to him being
struck by an aluminium sheet inside the offending vehicle, as alleged by
injured/claimant.
8. The issue raised by Mr. Shankar N Sinha , counsel for Insurance
Company, was that medical documents issued by the Rao Tula Ram
Memorial Hospital and Sir Ganga Ram Hospital did not seem to suggest
that there was a road traffic accident. He pointed out to the LAMA summary
prepared by Sir Ganga Ram Hospital , which recorded the history of
injured/claimant’s injury and stated that the patient had come with alleged
history of injury to right leg “ due to fall of cooler on his leg at home at
10:30pm on 15/05/11. ”. It further noted that there was no history of any
other injury.
9. Mr. Shankar N Sinha , counsel for Insurance Company, further
pointed out to the fact that, no report, indicating any damage or repair in the
offending vehicle, had been brought on record by injured/claimant. On this
basis, he contended that the absence of such a report clearly demonstrated
that a fraud had been perpetuated by injured/claimant.
10. Mr. Sinha, counsel for Insurance Company, also drew the attention of
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KUMAR CHOUDHARY
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this Court to the testimony of R3W1 , Dr. Vipin Gupta [ panel doctor of
United India Insurance company ], who deposed that he had been on the
Insurance Panel for the past 20 years, and came to the Court whenever he
was called to render his opinion. As regards the nature of injury of
injured/claimant, he deposed as under:
“ After seeing the LAMA Summary I nowhere found that
the injury were due to Road Accident rather the
petitioner received injuries due to fall of cooler at
home. ”
R3W1 , however, admitted that he had not personally seen the patient and
had opined on basis of the documents alone. In the medical report prepared
by him, R3W1 noted that injured/claimant was diagnosed as a case of
“ Right Foot Crush Avulsion Injury ”.
11. Mr. Sinha, counsel for Insurance Company, further submitted that
even if the version presented by injured/claimant is to be believed, injuries
sustained by the injured/claimant were due to a mechanical failure in the
offending vehicle, i.e. a tyre burst, and not due to negligence on part of the
driver of the offending vehicle. In this regard, he submitted that the petition
having been filed under Section 166 of the Motor Vehicles Act, 1988, it was
incumbent upon injured/claimant to establish that his injuries were caused
on account of negligence of the offending vehicle and therefore, in these
circumstances, where there is no material on record to establish rash and
negligent driving by the driver of the offending vehicle, the Insurance
Company cannot be roped in to pay compensation.
Submissions on behalf of injured/claimant
12. As regards the contention of Insurance Company in that the FIR had
been registered after a delay of about 7 months , Ms. Isha Khanna , counsel
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for injured/claimant, pointed out to DD Entry 38B dated 20 May 2011,
registered upon a complaint by father of injured/claimant, wherein it was
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recorded that the accident had occurred on 15 May 2011.
13. She further pointed out to the testimony of PW-4 /father of the
deceased, who stated that initially he had been avoiding any legal action
since he only wanted his son to “ get fit ”. During his cross-examination, he
admitted that he told the doctors at Sir Ganga Ram Hospital that his son had
received injuries due to the fall of a cooler on his leg; however, he
volunteered that, he had only told them so in order to ensure speedy
treatment of his son since he was afraid that involvement of the police
would have delayed his treatment. For ease of reference, said part from his
testimony is extracted as under:
“ It is correct that I told to the doctors of Ganga Ram
Hospital that my son received injury by falling of
cooler on his leg. Vol. I had told so because I was
looking for speedy treatment of my son as making of
police case may have delayed the treatment. ”
14. In this regard, Ms. Isha Khanna , counsel for injured/claimant, also
drew attention of this Court to the casualty card issued by Rao Tula Ram
Memorial Hospital , recording the following three points:
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i) Alleged history of trauma due to hit by sharp object on 15 May
2011.
ii) Incised wound over medial aspect of right ankle.
iii) A remark that he did not want to do a police case regarding his son,
and wanted to get the treatment done.
15. Ms. Isha Khanna , counsel for injured/claimant, submitted that
involvement of the offending vehicle can also be established on the basis of
testimony of Shiv Narain [ respondent no.3/owner ] who, upon the service of
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KUMAR CHOUDHARY
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notice to him under Section 133 of the MV Act, stated, that on the day of the
incident, the offending vehicle was being driven by his son, namely Kuldeep
Singh [ respondent no.2/driver herein ]. The same was also confirmed by the
testimony of PW-11 /Investigating officer, ASI Krishnan Kumar , who
deposed regarding the aforesaid admission made by Shiv Narain
[ respondent no.3/owner ].
16. Even in his statement recorded under Section 313 of the Criminal
Procedure Code, 1973 [‘ CrPC ’], Kuldeep Singh [ respondent no.2/driver
herein ], failed to take the defence that he was not driving the vehicle on the
date of the accident; neither has he stepped in the witness box to rebut the
occurrence of the accident.
17. As regards the issue of whether the accident was caused by the
alleged tyre burst, Ms. Isha Khanna , counsel for injured/claimant, pointed
out to the following documents:
i) Copy of notice to Shiv Narain [ respondent no.3/owner ] under
Section 91 of the CrPC, wherein he stated that he did not have the
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bill of the old tyre which had burst on 15 May 2011 or of the new
tyre which had subsequently been purchased or of the sale paper of
said burst tyre of the bus but he does not deny the occurrence of
the accident. He further stated that the tyre which was replaced by
them after the incident had been given to a rubbish/scrap dealer
( kabaadi );
ii) History and examination sheet issued by the Medanta Hospital
recording “ history of injury to right ankle, as a result of RTA ”
iii) Testimonies of all the eye-witnesses, including PW-1 /injured,
PW-2 / Jai Bhagwan and PW-7 / Chand Ram, which were
consistent, in that they were returning from a marriage party at
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Trilokpuri on 15 May 2011, when the rear tyre of the bus, that
they were travelling in, burst due to which the metal sheet fixed
below the seat, struck the leg of injured/claimant, leading to
grievous injuries.
iv) Cross-Examination of PW-11 /Investigating officer, ASI Krishnan
Kumar, conducted by counsel for accused [ respondent
no.2/driver ], wherein he denied the suggestion that
injured/claimant had sustained injuries after a cooler had fallen on
his legs.
18. Ms. Isha Khanna , counsel for the injured/claimant, further objected to
the reliance placed by the Insurance Company upon the testimony of R3W1 ,
Dr. Vipin Gupta [ panel doctor of United India Insurance company ], and
submitted that the said doctor was an interested witness, as he was on the
panel of the said Insurance Company and had formed his opinion purely on
the basis of the documents produced before him, without personally
examining the injured.
Analysis
19. Basis the documents which have been pointed to by Ms. Isha Khanna ,
counsel for injured/claimant, the Court is not inclined to accept the version
put forth by the Insurance Company, in that the injured/claimant sustained
injuries due to fall of a cooler.
20. Mr. Sankar N. Sinha , counsel for Insurance Company, attempted to
persuade the Court that injury to the right leg of injured/claimant was
sustained due to fall of a cooler on his leg and not on account of rash and
negligent driving of the offending vehicle.
21. However, it is noted that two versions were presented by Mr. Sinha ,
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KUMAR CHOUDHARY
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counsel for Insurance Company, in his submissions before the Court. On
one hand, it was stated that the injured/claimant, along with some other
persons, was returning from a marriage party in the offending vehicle; at
about 10:30 P.M., when the offending vehicle reached Mother Dairy , Main
Road Jaffarpur Kalan , Delhi , its rear tyre burst. To this extent, the
occurrence of the tyre burst is also admitted by the Insurance Company. It
was stated that “ due to this mishap, a water cooler installed inside the bus
dislodged and fell upon the leg of the injured, causing severe injuries ”.
22. On the other hand, the Insurance Company has placed reliance on the
LAMA summary prepared by Sir Ganga Ram Hospital , exhibited as PW1/3 ,
wherein the patient’s history was recorded as follows: “ injury to right leg
due to fall of cooler on leg at home at 10:30 p.m. on 15th May 2011 ”. On
this basis, it was contended that injured/claimant’s injuries were not caused
due to the offending vehicle.
23. This was buttressed by the testimony of R3W1 [ panel doctor of the
Insurance Company ] who stated that, after seeing the LAMA summary, he
did not find that the injury had been caused due to road accident, and instead
had been caused due to the fall of cooler at home.
24. However, in the opinion of this Court, the testimony of R3W1 cannot
be considered credible, not only because he was an interested witness, but
also because the LAMA summary explicitly recorded the cause of the
injury, leaving no scope for any further interpretation. What needs to be seen
instead is the testimony of PW-4 /father of the deceased, who stated that he
had been avoiding any police involvement/legal action since he was only
looking for speedy treatment for his son.
25. During his cross-examination, PW-4 /father of the deceased admitted
that he had told the doctors at Ganga Ram Hospital that his son
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[ injured/claimant ] had received injuries due to fall of a cooler on his leg in
order to receive speedy treatment. This aspect also forms part of the casualty
card issued by Rao Tula Ram Hospital , as noted above, wherein it was
recorded that father of injured/claimant did not wish to pursue a police case
and, instead wanted to receive treatment.
26. In these facts and circumstances, there is no reason to dislodge the
testimony of PW-4/ father of injured/claimant , in favour of the stand taken
by the Insurance Company that the injury was caused due to the fall of a
cooler.
27. Furthermore, neither has the Insurance Company led any evidence to
establish that a cooler, which could have caused the injury, was installed in
the offending vehicle, nor has it disputed or denied the fact that there was a
tyre burst in the offending vehicle. In this regard, the documents placed on
record by Ms. Isha Khanna , counsel for injured/claimant, are dispositive.
28. The history and examination sheet issued by Medanta Hospital on
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19 May 2011, just after the accident, further records that there was history
of injury to the right ankle as a “ result of a road traffic accident” .
29. In view of the aforesaid, it seems highly improbable that on the date
of the accident, injured/claimant would have gone to the hospital and,
instead of seeking treatment for an injury caused by a cooler falling at home,
concocted a story involving a motor accident merely to secure insurance
coverage.
30. Moreover, in response to the notice served under Section 133 of the
MV Act, Shiv Narain [ respondent no. 3 / owner ] stated that his son was
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driving the vehicle on 15 May 2011 at the time of the accident .
31. The notice issued under Section 91 of the Cr.P.C. did not pertain to
whether the vehicle had been involved in an accident. However, in response
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to the said notice, it was stated that the bill for the old tyre that had burst was
not available, nor was the bill for the new tyre purchased or any record of
the sale of the burst tyre to a kabaadi . However, the occurrence of the
incident itself was not disputed.
32. It is also apposite to note the testimony of the IO, ASI Krishnan
Kumar , who deposed as PW-11 regarding the notice issued under Section
133 of the MV Act; during his cross-examination, he denied the suggestion
that the injured/claimant had sustained injuries due to a cooler falling on his
legs.
33. The testimonies of the witnesses i.e. PW-1 , PW-2 , PW-3 and PW-7
are also consistent. PW-1 [ injured / claimant ] stated that, while returning
from Trilok Puri , he was seated on the conductor's side of the bus, with the
rear tyre of the bus located directly beneath his seat. At about 10:20 P.M.,
when they reached Mother Dairy , Jaffarpur , said tyre of the bus burst since
the bus mounted upon a stone, as a result of which, the sheet of the bus
located above the tyre and under the seat on which he was sitting, hit him on
the right leg. Consequently, he suffered injuries whereby his blood started
oozing out. He was then taken to Rao Tula Ram Hospital , where he was
treated. However, on advice of the doctors, he was taken to Ganga Ram
Hospital and, thereafter, to the Medanta Hospital . He was subsequently
taken to Chaitanya Hospital , and then to Jupiter Hospital , Mumbai , where
during the course of treatment, his right foot was amputated due to an
infection.
34. During his cross-examination, he further stated that the band party
had also been sitting at the back of the bus and that the band party was
alighting from the bus when the tyre burst. He again stated that the tyre burst
when the bus started moving. He also denied the suggestion that the
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amputation of his right foot was because of the doctor's negligence or that he
had not received proper treatment.
35. PW-2 , who was also an occupant in the bus, corroborated the
testimony of PW-1 . Furthermore, PW-3 , another occupant of the bus,
clearly stated, “ because of the tyre burst, the sheet lying above it got torn
and the seat on which Krishan was sitting hit his leg due to which he
received injuries ”. He further deposed that Krishan [ injured/claimant ], had
been sitting behind him.
36. PW-7 , who was also an occupant of the said bus, further corroborated
the aforesaid testimonies by stating that, one passenger, namely Krishan had
sustained leg injuries due to bursting of the tyre. PW-7 identified the person
in the Court as the owner of the bus from whom he had hired the said bus,
and confirmed that he had been issued a receipt at the time of hiring.
37. As regards the delay of seven months in lodging the FIR, which the
Insurance Company has relied upon to contend that the case was falsely
concocted, counsel for injured/claimant, Ms. Isha Khanna , drew the
attention of this Court to DD Entry No. 38B dated 20th May 2011, recorded
pursuant to the complaint made by father of the injured/claimant regarding
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the accident that occurred on 15 May 2011.
38. The aforesaid DD entry recorded that when they were returning at
about 10:20 P.M., the complainant’s son sustained injuries in relation to his
right leg. Further, as per the rest of the occupants as well, the driver of the
bus had been driving in a negligent manner right from the beginning.
39. The IO had visited the residence of the injured/claimant; however, the
injured/claimant was out of Delhi . The FIR was eventually registered on
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02 December 2011, after seeking an opinion for the registration of the FIR.
40. As far as the FIR is concerned, the incident has once again been
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clearly stated. In fact, the FIR also records that that when they had gone to
Rao Tula Ram Marg Hospital , his father, Ashok Kumar had to refused to get
an MLC since he didn't wish to be involved in legal issues. The FIR
thereafter narrates the history of injured/claimant’s treatment, which finally
culminated at the Jupiter Hospital , Mumbai , where his leg was amputated.
Injured/claimant further stated that he had returned to Delhi in July 2011,
but could not give his statement as he was undergoing treatment and was
unavailable when the police visited.
41. Accordingly, in view of the aforesaid documents and testimonies, the
assessment made by the MACT regarding the issue of negligence is,
sustained.
42. The MACT, had also taken a note of the documents issued by Sir
Ganga Ram Hospital and accepted the explanation for the delay in
registration of the FIR. Accordingly, on the touchstone of preponderance of
probabilities , it stands established that the injured/claimant sustained
injuries as a result of the accident which on 15th May 2011, due to rash and
negligent driving of the offending vehicle. The plea of the Insurance
Company plea in this regard is therefore unmerited.
Mechanical Failure - Statutory claim for compensation
43. Another issue raised by the Insurance Company is that a mechanical
failure cannot give rise to a statutory claim for compensation under Section
166 of the MV Act, and that in such cases negligence on part of the driver of
the offending vehicle must be established.
44. In this regard, reference may be made to Section 166 of the MV Act,
which permits applications for compensation arising out of accidents of the
nature specified in Section 165(1) of the said Act. Section 165(1) provides
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for claims for compensation “ in respect of accidents involving the death of,
or bodily injury to, persons arising out of the use of motor vehicles ”. It
cannot, therefore, be presumed, as contended by the Insurance Company
that the injuries did not arise out of the use of a motor vehicle merely
because the accident involved a mechanical failure.
45. In this context, this Court considers it appropriate to discuss certain
judicial decisions, wherein negligence has been attributed to the owner of
the offending vehicle for injuries or death resulting from the use of a motor
vehicle, notwithstanding that the accident originated from a mechanical
failure.
46. In Ramji Hiralal Porte v. Premabai Patel , 1998 SCC OnLine MP 7,
the Division Bench of the Madhya Pradesh High Court was dealing with an
accident, wherein tyre of the offending vehicle had punctured and its arm
bolt was broken, as a result of which, the vehicle turned turtle, leading to
instantaneous death of the driver. On the basis of the evidence, it was
established that the accident occurred due to breakage of the arm bolt.
47. However, the Court held that when the accident occurs due to a
mechanical defect, the owner of the vehicle has to prove that he had taken
all necessary precautions to keep the vehicle in a road worthy condition and
that the defect had occurred in spite of reasonable care and caution taken by
the owner. For this, the owner must raise a plea that the defect was latent
and not discoverable by the use of reasonable care. The burden of proving
that the accident had occurred due to a mechanical defect was upon the
owner and, in order to absolve himself from liability, the owner must prove
that he had exercised all reasonable care and that in spite of such reasonable
care, the defect remained hidden, thus, making the accident inevitable.
Reliance in this regard was placed upon the decision of the Supreme Court
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in Minu B. Mehta v. Balkrishna Ramchandra Nayan , (1977) 2 SCC 441 .
48. Similarly, in Kaushnuma Begum v. New India Assurance Co. Ltd. ,
(2001) 2 SCC 9, the Supreme Court was dealing with an accident involving
a jeep, which capsized while it was in motion. The cause of the accident was
attributed to bursting of the front tyre of the jeep. In the process of
capsizing, the jeep had hit against the claimant who was walking on the
road, resulting in fatal injuries to him. The Tribunal dismissed the claim for
compensation, and the High Court subsequently dismissed the appeal, both
holding that negligence on the part of the driver had not been established.
The Supreme Court, however, considered Section 165(1) of the MV Act and
observed that the jurisdiction of a Tribunal was not restricted to deciding
claims arising out of ‘ negligence ’ in the use of motor vehicles. Negligence
was only one of the species of causes of action for making a claim for
compensation in respect of accidents arising out of use of motor vehicles.
The Court noted that “ there are other premises for such cause of action ”.
49. The Supreme Court further noted that even where no negligence
could be attributed to the driver, if the accident occurs while the vehicle was
in use, the rule of ‘ strict liability ’ under Rylands v. Fletcher , (1863) 3 HL
330, would apply. The Court observed that the rule in Rylands v. Fletcher
( supra ) was approved by the Constitution Bench in M.C Mehta v Union of
India , (1987) 1 SCC 395.
50. Reliance was placed upon the decision of the Supreme Court in
Gujarat SRTC v. Ramanbhai Prabhatbhai , (1987) 3 SCC 234, wherein the
Court considered the question regarding application of the rule in cases
arising out of motor accidents. The Court noted the observation made by
E.S. Venkataramiah, J . (as he then was), as under:
“ Today, thanks to the modern civilization, thousands of
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motor vehicles are put on the road and the largest number
of injuries and deaths are taking place on the roads on
account of the motor vehicles accidents. In view of the fast
and constantly increasing volume of traffic, the motor
vehicles upon the roads may be regarded to some extent as
coming within the principle of liability defined in Rylands v.
Fletcher [(1861-73) All ER Rep 1 : (1868) 3 HL 330] .
From the point of view of the pedestrian the roads of this
country have been rendered by the use of the motor vehicles
highly dangerous. ‘Hit and run’ cases where the drivers of
the motor vehicles who have caused the accidents are not
known are increasing in number. Where a pedestrian
without negligence on his part is injured or killed by a
motorist whether negligently or not, he or his legal
representatives as the case may be should be entitled to
recover damages if the principle of social justice should
have any meaning at all. In order to meet to some extent the
responsibility of the society to the deaths and injuries
caused in road accidents there has been a continuous
agitation throughout the world to make the liability for
damages arising out of motor vehicles accidents as a
liability without fault .”
(emphasis added)
51. On this basis, the Supreme Court observed that, the rule in Rylands v.
Fletcher ( supra ) may be followed until a new principle, which excels the
former, can be evolved.
52. Furthermore, in I. Varalakshmi v. Andhra Pradesh State Road
Transport Corporation Limited , 2003 SCC Online Kar 823, the Kerala
High Court was dealing with an accident where a stone was hurled at the
wind screen of the bus, thus, smashing the glass, which hit the deceased on
his forehead. It was alleged that the respondent- corporation had failed to
provide adequate security by way of wire meshing of the windows and
toughened window glass screens.
53. The Kerela High Court relied upon the decision in Kaushnuma
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Begum ( supra ), as well as recognition of the rule of ‘ strict liability ’ in
Rylands v. Fletcher ( supra ), and held that the term “ arising out of the use of
the motor vehicle has been given a wide interpretation ”. The Court noted
that, what was important was that there ought to be a causal connection, not
necessarily a direct and immediate one, between the use of the vehicle and
the accident-causing death or injuries to the claimants. The Court, therefore,
held that a causal connection, between the use of the vehicle and the
accident, is crucial for a true and correct assessment in such cases.
54. This Court, in National Insurance Co. Ltd. v Rajbir Singh , 2012
SCC OnLine Del 4665, was dealing with an accident which occurred due to
a tyre burst, following which the vehicle overturned, resulting in the death of
its occupants. The Court, once again, relied upon the principles enunciated
by the Supreme Court in Kaushnuma Begum ( supra ), and held that even
though in the said case, negligence was proved basis evidence that the
offending vehicle was being driven at high speed and that the accident could
have been avoided if it was being driven at a normal speed, the appellant, in
any case, could not have avoided liability in view the principle of ‘ strict
liability ’ .
55. In New India Assurance Co. Ltd. v. Mrunal Makarand Patwardhan ,
2023 SCC OnLine Bom 669, a Single Judge of the Bombay High Court was
dealing with a case involving burst of the tyre of the offending vehicle. It
was contended that there was no negligence on part of the driver, and that
the tyre burst was an ‘ Act of God’ . The Court, however, held that that
bursting of tyre could not be termed as an Act of God. The Court noted that
a tyre burst was an act of human negligence and could be attributed to
various reasons, including high speed, under inflated or over inflated tyres,
second hand tyres, temperature etc and that the driver or owner of the
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vehicle is required to check the condition of the tyre before travelling.
56. The Court further noted that the Insurance Company had not
examined the driver of the offending car to prove that there was another
reason for the tyre burst, which was beyond the control of the driver or
owner of the offending vehicle. Accordingly, the contention of the Insurance
Company was rejected.
57. In this regard, it would also be useful to refer to certain observations
made by the Supreme Court in Minu B. Mehta ( supra ), particularly the
paragraphs which have reproduced hereinbelow:
“ 14. In order to sustain a plea that the accident was due to
the mechanical defect the owners must raise a plea that the
defect was latent and not discoverable by the use of
reasonable care. The owner is not liable if the accident is
due to a latent defect which is not discoverable by
reasonable care. The law on this subject has been laid down
in Henderson v. Henry E. Jenkins & Sons [1970 AC 282 :
(1969) 2 All ER 756] . In that case the lorry driver applied
the brakes of the lorry on a steep hill but they failed to
operate. As a result the lorry struck and killed a man who
was emerging from a parked vehicle. The defence was that
brake failure was due to a latent defect not discoverable by
reasonable care on driver's part. It was found that the lorry
was five years old and had done at least 150,000 miles. The
brakes were hydraulically operated. It was also found after
the accident that the brake failure was due to a steel pipe
bursting from 7 mm. to 1 mm. The corrosion had occurred
where it could not be seen except by removing the pipe
completely from the vehicle and this had never been done.
Expert evidence showed that it was not a normal precaution
to do this if, as was the case, the visible parts of the pipe
were not corroded. The corrosion was unusual and
unexplained. An expert witness said it must have been due
to chemical action of some kind such as exposure to salt
from the roads in winter or on journeys near the sea. The
House of Lords held that the burden of proof which lay on
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the defendants to show that they had taken all reasonable
care had been discharged. The defect remained
undiscovered despite due care. As the evidence had shown
that something unusual had happened to cause this
corrosion it was necessary for the defendants to show that
they neither knew nor ought to have known of any unusual
occurrence to cause the breakdown. (See Bingham's Motor
Claims Cases, 7th Edn., p. 219).
15. The burden of proving that the accident was due to a
mechanical defect is on the owners and it is their duty to
show that they had taken all reasonable care and that
despite such care the defect remained hidden. In this case in
the written statement all that is pleaded is that the axle
brake ring of the lorry came out and the driver lost control
of the motor lorry and that the defect can develop in a
running vehicle resulting in the driver's losing control of the
steering wheel. Though it was stated that all precautions
were taken to keep the lorry in a roadworthy condition it
was not specifically pleaded that the defect i.e. the axle
brake ring coming out, is a latent defect and could not have
been discovered by the use of reasonable care. This lack of
plea is in addition to the lack of evidence and the fact that
the defence set up has been rightly rejected by the
Tribunal .”
(emphasis added)
58. The Supreme Court, therefore, held that in order to succeed in a
defence that the accident had occurred due to a mechanical defect, the owner
must prove that he had taken all necessary precautions to ensure that the
vehicle was in a road worthy condition and, since no attempts was made to
establish the same, the liability would lie.
59. It would also be relevant to note that Rule 94 of the Central Motor
Vehicle Rules, 1989, explicitly states that, every motor vehicle shall be
fitted with pneumatic tyres. They shall be kept properly inflated and in
" good and sound condition .” It further states that “ the tyre shall not be
deemed to be of good and sound condition if any of the fabric of its casing is
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exposed by wear of the tread or by any unvulcanised cut or abrasion in any
of its parts ”.
60. Accordingly, applying the aforesaid principle to the facts of the
present case, it is noted that no evidence has been placed on record by the
driver, the owner or the Insurance Company to prove that the offending
vehicle was in a roadworthy condition and that the tyre in question had burst
due to a reason other than being overused or in a vulnerable condition.
Neither was any evidence led by the driver, the owner or the Insurance
Company to rebut the issue of ‘ strict liability ’. Accordingly, the Insurance
Company’s plea in this regard is also rejected.
Computation of compensation
61. Ms. Isha Khanna , counsel for injured/claimant, has sought
enhancement of the compensation on two grounds, first , that the MACT did
not assess functional disability of injured/claimant and consequently no
amount was awarded to him towards loss of future earning capacity and,
secondly , that no amount has been awarded to him towards cost of
prosthetic limbs.
62. It was submitted by Ms. Isha Khanna that injured/claimant was a
th
student of the 11 standard and suffered below knee amputation of the right
leg, resulting in 70% permanent disability , as a result of the accident. The
disability certificate of injured/claimant was exhibited as Exhibit PW-1/5 .
63. Deposition of PW-2 / Dr. T. K. Prasad [ ENT consultant, Ram Tula
Rao Hospital ] was also placed on record, who stated that he was one of the
members of the medical board who had examined the injured/claimant. He
stated that the injured/claimant’s disability was permanent in nature.
Injured/claimant could not move fast or stand on a leg for quite a long time.
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Further, he would face difficulty in climbing stairs or others place at height.
64. Accordingly, having regard to the aforesaid, this Court is of the
opinion that the contentions raised on behalf of the injured/claimant in
respect of enhancement of compensation ought to be considered.
65. Considering that the injured/claimant was 17 years of age on the date
of the accident, the notional income injured/claimant shall be determined on
the basis of minimum wages applicable to a skilled worker in terms of the
decision of the Supreme Court in Hitesh Nagjibhai Patel v. Bababhai
Nagjibhai Rabari , 2025 SCC OnLine SC 3446 and of this Court in Rubi
Devi v. New India Assurance Com. Ltd ., 2026 SCC OnLine Del 2366, and
Vineet Singh v. Oriental Insurance Co Ltd. , 2026 SCC OnLine Del 2225.
66. The loss of future earning capacity of injured/claimant, shall,
therefore, be calculated on the said basis, by taking the benchmark income
of injured/claimant at Rs. 7,410/- per month [ minimum wages of a skilled
worker applicable to Delhi in May 2011 ]. Future prospects shall be granted
at ‘ 40% ’, since injured/claimant was 17 years of age at the time of accident
and the multiplier shall be taken at ‘ 18 ’.
67. The Court also needs to assess the functional disability of the
injured/claimant in terms of the decision in Raj Kumar v. Ajay Kumar ,
(2011) 1 SCC 343, wherein the Supreme Court held that functional
disability must be assessed on the basis of the vocation of the claimant and
the nature of the vocation that he could potentially pursue in view of his
disability.
68. The injured/claimant has sought assessment of his functional
disability at 100%, on the ground that he was participating in Under-13
boys' cricket. However, upon an overall assessment of the matter, this
circumstance, by itself, may not be determinative of the extent of his
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functional disability.
69. However, since the injured/claimant suffered 70% permanent
disability in relation to his right lower limb , there can be no doubt that he
would face an impediment in pursuing his desired vocation in the future. In
view of the fact that the use of a prosthetic limb would aid the
injured/claimant, the cost of which is being awarded by this Court, the
functional disability of the injured/claimant shall at best, be assessed at 75%.
70. As regards the compensation towards medical expenditure , an amount
of Rs. 9,71,035/- has been claimed by the injured/claimant in respect of the
treatment undertaken by him in various hospitals. The details thereof have
been tabulated as under:
71. There is no reason why the said amount should not be awarded to the
injured/claimant. The expenses incurred towards air travel to Mumbai for
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treatment, however, cannot be granted, as injured/claimants’ decision to
seek treatment in Mumbai was his own and not necessitated by the non-
availability of such treatment in Delhi .
72. Compensation towards pain and suffering has been reasonably
awarded at Rs. 5,00,000/- . Loss of amenities , which would include within its
ambit the aspect of loss of studies , shall accordingly be awarded at Rs.
1,50,000/- .
73. Further, since injured/claimant has suffered amputation of his right
leg below knee, the Court deems it fit to award amount towards the cost of
prosthetic limbs to the injured/claimant, even though no evidence has been
led by injured/claimant in this regard.
74. The principles relating to prosthetic limbs have now been clarified by
the decision of the Supreme Court in Prahlad Sahai v. Haryana Roadways ,
2026 SCC OnLine SC 651. The case concerned a right leg crush injury
resulting in amputation below the knee. The claimant therein relied upon the
decision in Mohd. Sabeer v. U.P. SRTC , (2023) 20 SCC 774 , to contend
that the injured was 32 years of age ; therefore, considering the assumed life
expectancy of 70 years , he would require prosthetic limbs for 38 years . He
further contended that since an artificial limb needs to be replaced every 5
years , maintenance charges would also have to be granted.
75. Traversing through the law in this regard, the Supreme Court, in
Prahlad Sahai ( supra ), recognized a block of ‘ 5 years ’ as the reasonable
replacement period for a prosthetic limb. Further, the Supreme Court
assumed the life span of the claimant at 70 years and concluded that the
claimant would require seven prosthetic limbs. It, therefore, awarded a
consolidated amount of Rs.3,00,000/- per limb on a standard basis for seven
limbs . No interest was awarded on this amount, considering that it was being
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awarded as a consolidated lump sum. Maintenance of the prosthetic limb, at
Rs. 15,000/- per annum was also awarded, amounting to Rs. 75,000/- for
each block of 5 years . For ready reference, relevant portion from Prahlad
Sahai ( supra ) is reproduced hereinbelow:
“ 30. As would be clear from the discussion hereinabove, our
Court has recognized a block of five years as the reasonable
replacement period for a prosthetic limb, and we have
followed the same.
31. The appellant was thirty-two years in 2007. Applying an
assumed life span of seventy years as the maximum for
which as a standard formula compensation for prosthetic
limb is awarded and calculating the life of one prosthetic
limb as five years, the appellant will need seven prosthetic
limbs. Insofar as the price is concerned, the appellant has
claimed the 2007 price for the first block with interest @ 9
per cent. Though he has claimed for eight limbs the correct
proportion to award would be seven limbs, since the
amputation happened on 17.07.2009.
32. We are inclined to award, like in Md. Shabir (supra), a
consolidated amount towards the price. We are inclined to
grant Rs. 3,00,000/- per limb on a standard basis for seven
limbs. In view of the fact that a consolidated amount is
being paid, no interest from the date of the accident is
awarded. Considering that the price has been arrived at by
broadly applying the case Md. Shabir (supra), which we
find reasonable, we are not inclined to proceed on the basis
of the notification relied upon by the Insurance Company.
33. We are also inclined to award cost of maintenance of
prosthetic limb at Rs. 15,000/- annually. For a block of five
years, it would work out to approximately Rs. 75,000/-. We
award a consolidated sum of Rs. 5,00,000/- till the assumed
life span of seventy years. ”
(emphasis added)
76. Accordingly, in the facts and circumstances of this case, considering
that the injured/claimant was 17-years-old at the time of the accident, and
assuming his life span at 70 years , the Court deems it fit to consider that he
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would require a prosthetic limb for another 53 years . He would, therefore,
require replacement of approximately ‘ 11 ’ prosthetic limbs over his lifetime,
assuming a replacement period of 5 years .
77. The Court deems it fit to consider the cost of each prosthetic limb at
Rs. 3,00,000/- , as claimed by the injured/claimant. Further, following the
direction of the Supreme Court, an amount of Rs. 75,000/- for each block of
5 years towards maintenance shall also be taken into consideration.
Accordingly, the aforesaid amount, calculated at Rs. 40,95,000/- , shall be
awarded to injured/claimant in this regard.
78. In view of the aforesaid directions regarding enhancement, the revised
compensation shall be calculated as under:
S. No. Heads of Compensation Awarded by
Awarded by the
Court
Pecuniary Loss
1. Compensation towards
medical bills (A)
Tribunal
Rs. 4,35,655/- Rs. 9,71,035/-
2. Expenditure on
conveyance and special
diet (B)
Rs. 25,000/- Rs. 25,000/-
3. Attendant Charges (C) Rs. 18,000/- Rs. 18,000/-
4. Income of injured per
month (D)
NIL Rs. 7,410/-
5. Future Prospects (F) NIL Rs. 10,374/-
[40%]
6. Functional disability (G) NIL 75%
7. Multiplier (H) NIL 18
8. Loss of future earning
capacity (I) [F X 12 X G
X H]
NIL Rs. 16,80,588/-
Non-pecuniary loss
9. Pain and suffering (J) Rs. 5,00,000/- Rs. 5,00,000/-
10. Loss of amenities/Loss Rs. 40,000/- Rs. 1,50,000/-
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of studies (K)
11. Total [A + B + C + I +
J+ K ]
Rs. 10,18,655/- Rs. 33,44,623/-
12. Enhanced
compensation
Rs. 23,25,968/-
13. Interest 7.5% 7.5%
Directions
79. Accordingly, the compensation shall stand enhanced by Rs.
23,25,968/- [‘ enhanced amount ’].
80. Enhanced amount along with 7.5% interest per annum from the date
of filing the petition, shall be deposited before MACT within a period of
four weeks . It is directed that a lump sum amount of Rs. 5,00,000/- shall be
released in favour of the injured/claimant from the deposit of enhanced
amount, thereafter. Remaining enhanced amount, along with accrued
interest, shall be kept in Fixed Deposit Receipts [hereinafter, ‘ FDRs ’] of
Rs.25,000/- each for periods of 1 month, 2 months, 3 months and so on, in
succession as maybe calculated. Interest accruing on said FDRs shall be
credited to the designated Savings Bank Account of injured/claimant. The
amount of FDRs on maturity would be released to the Savings Bank
Account of claimant/injured upon due verification.
th
81. Vide order dated 09 March 2011, the Court had directed the
Insurance Company to deposit the entire compensation amount, along with
st
accrued thereon. Further, vide order dated 21 April 2015, 50% of the said
amount was directed to be released in favour of the injured/claimant.
82. Accordingly, any balance amount from the originally awarded
amount, along with accrued interest thereon, if not already released, shall be
released in favour of appellant/claimant, as a lump sum, considering that the
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accident occurred way back in 2011.
83. Amounts towards prosthetic limbs, calculated at Rs. 45,95,000/- shall
be deposited by Insurance Company before the MACT within a period of six
weeks as a separate amount, not garnering interest for the period which has
passed since the date of the accident. The amount, shall, however, be kept in
an interest-bearing Fixed Deposit Receipt [‘ FDR ’].
84. Amounts towards prosthetic limbs shall be released only upon
production of a verified original invoice and proof of payment from a
reputed vendor.
85. Further, any amount deposited towards the cost of the prosthetic
limbs , which is not withdrawn by the injured/claimant during his lifetime,
shall be refunded to the Insurance Company.
86. Statutory amount, if any, shall be refunded to the Insurance Company,
only if the order of deposit has been complied with.
87. Accordingly, both these appeals are disposed of in above terms.
88. Pending applications, if any, are rendered infructuous.
89. Judgment be uploaded on the website of this Court.
(ANISH DAYAL)
JUDGE
OCTOBER 29, 2026/RK/ ya
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