$~3 * IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 26^th February 2026 + MAC.APP. 493/2014 M/S NATIONAL INSURANCE CO LTD .....Appellant Through: Mr. Pankaj Seth & Mr. Yurvaraj Sharma, Advs.

versus ANIL KUMAR & ORS .....Respondent Through: Mr. Debashis Mukherjee, Mr. Parma Nand and Mr. Anand Shankar, Advocates for Respondent No. 1 CORAM:

HON'BLE MR. JUSTICE ANISH DAYAL

JUDGMENT

ANISH DAYAL, J (ORAL)

1. This appeal has been filed challenging award dated 28^th February 2014 passed by MACT, Saket Courts in MACT No.714/2011, whereby compensation of Rs.21,52,901/- was awarded to injured-claimant, Mr. Anil Kumar, who had suffered injuries in an accident on 20^th March 2011 when an Indigo Car bearing No.DL-3C-BB-2867 (offending vehicle) being driven by respondent no.2, hit motorcycle of injured. The offending vehicle was insured with the appellant.

2. As per the disability certificate, claimant suffered 90% permanent disability with respect to his left lower limb.

3. Mr. Pankaj Seth, counsel for Insurance Company, challenges the assessment of functional disability at 100%, contending that there was disability only with respect to left lower limb. He contends that even though claimant had claimed to be a TSR driver, there are other vocations in which he could have engaged himself. Therefore, 100% functional disability, amounting to complete loss of earning capacity, cannot be imputed in a case of this nature. In this regard, he adverts to paragraph 15 and 19 of the MACT award, whereby the Tribunal has considered the principles laid down by the Supreme Court in Raj Kumar v. Ajay Kumar (2011) 1 SCC 343; however, according to Mr. Seth, the said principles have not been applied in the correct manner to the facts of the present case.

4. To this extent, this Court is inclined to agree with submissions of Mr. Seth, as 100% loss of earning capacity can be imputed only in cases where person is completely disabled or completely paralysed and is unable to earn anything at all. The present case is not a case of amputation, rather it is a case of disability caused due to fracture involving a femur, which has been operated with external fixtures/plating.

5. The Supreme Court in the case Raj Kumar v. Ajay Kumar (2011) 1 SCC 343, held that the Tribunal must assess not merely the extent of permanent disability but its actual impact on the claimant’s earning capacity, which may differ from the medical percentage of disability. This requires evaluating the claimant’s pre-accident vocation, the functions affected, and whether livelihood can still be earned despite the disability. The Court emphasised that disability and loss of earning capacity are distinct concepts, except in cases where evidence shows they coincide. Relevant paragraphs are extracted as under:

“11. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that the percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation.

12. Therefore, the Tribunal has to first decide whether there is any permanent disability and, if so, the extent of such permanent disability. This means that the Tribunal should consider and decide with reference to the evidence:

(i) whether the disablement is permanent or temporary;

(ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement;

(iii) if the disablement percentage is expressed with reference