04.2026 Oriental Insurance Co. Ltd v. Dharmender & Ors.

appeal primarily on two grounds: firstly, that negligence could not have been a<ributed to the bus driver as the claimant was crossing the road; and secondly, that although the medical disability proved on record was 20%, the Tribunal erred in assessing func*onal disability at 60%.

5. Having heard learned counsel for the appellant and upon perusal of the record, this Court finds no substance in either of the submissions.

6. At the outset, it is well se<led that proceedings under Sec*on 166 of the Motor Vehicles Act are summary in nature and strict rules of evidence applicable to civil trials are not to be mechanically imported. The claimant is only required to establish negligence on the touchstone of preponderance of probabili*es.

7. In the present case, claimant Dharmender entered the witness-box and gave a consistent ocular account of the accident. He specifically deposed that he was standing at the zebra crossing awai*ng the signal when the bus, driven rashly and negligently, hit him. His tes*mony remained materially unshaken. More significantly, neither the driver of the offending vehicle entered the witness-box nor was any rebu<al evidence adduced by the respondents to present an alternate version of the occurrence.

8. Where the driver, being the person best acquainted with the manner of accident, abstains from the witness-box without explana*on, an adverse inference is legi*mately a<racted. In the absence of any contrary evidence, the uncontroverted tes*mony of the injured claimant could rightly be relied upon by the Tribunal. Merely because a pedestrian was in the process of crossing the road does not ipso facto absolve a motor Page No. 2 of 4 Pages FAO-2085-2026 (O&M) vehicle driver of the duty to exercise cau*on, par*cularly at or near a zebra crossing, where heightened vigilance is expected. The finding of negligence, therefore, calls for no interference.

9. Coming to the issue of quantum, the record reveals that the claimant was employed as a heavy transport vehicle driver with Antony Road Transport Solu*ons Pvt. Ltd. The employer produced the relevant service and salary record, on the basis whereof the Tribunal assessed his average monthly income at ₹23,000/-. Considering the age of the claimant as 47 years, addi*on of 25% towards future prospects was granted, raising the monthly income to ₹28,750/-. Learned counsel for the appellant has fairly not disputed this component of the award.

10. The principal objec*on is to the assessment of func*onal disability at 60% despite medical disability being cer*fied at 20% in rela*on to the leE upper limb.

11. The submission is misconceived. It is now firmly se<led that physical disability and func*onal disability are dis*nct concepts. Medical disability denotes bodily impairment, whereas func*onal disability concerns the impact of such impairment upon the earning capacity of the vic*m, viewed in light of his voca*on. A person may suffer a compara*vely lesser physical disability but a far greater loss of earning capacity depending upon the nature of employment.

12. The disability cer*ficate (Ex.P-13), duly proved by PW-2 Dr. Vijay Dhull, established permanent disability of the leE upper limb. The doctor further indicated that the disability was permanent in nature. The claimant deposed that because of the injuries and resultant complica*ons, he was unable to perform his rou*ne du*es as a driver. The occupa*on of driving heavy commercial vehicles necessarily demands coordinated and sustained use of upper limbs for steering control, gear opera*on, braking balance and long-dura*on handling of the vehicle. Any serious impairment Page No. 3 of 4 Pages FAO-2085-2026 (O&M) of the upper limb materially diminishes the ability to safely perform such work.

13. The learned Tribunal rightly applied the principles laid down in “Raj Kumar vs. Ajay Kumar and others” (2011) 1 SCC 343; and “Syed Sadiq etc. vs. Divisional Manager, United India Insurance Company 2014(4) SCC 735, wherein it was held that the real inquiry is not confined to the percentage of bodily disability but extends to the resultant loss of earning capacity. Considering that the claimant may s*ll perform some alternate sedentary or lighter voca*on, but would be substan*ally disabled from con*nuing as a heavy vehicle driver, the assessment of func*onal disability at 60% cannot be said to be arbitrary or excessive.

14. Appellate interference with compensa*on awarded by the Tribunal is warranted only where the assessment is shown to be palpably erroneous, contrary to evidence, or based on misapplica*on of se<led principles. No such infirmity has been demonstrated in the present case.

15. Consequently, finding no merit in the appeal, the same is hereby dismissed. The award dated 30.01.2026 passed by the learned Motor Accident Claims Tribunal, Rohtak, is affirmed.

16. All pending miscellaneous applica*ons, if any, shall also stand disposed of. April 17, 2026 Nee*ka Tuteja (DEEPAK GUPTA) JUDGE Whether Speaking/reasoned Yes/No Yes/No Whether Reportable Page No. 4 of 4 Pages