Delhi District Court
Zaishu Xie & Anr. vs . Oic & Ors. ` on 31 July, 2018
Zaishu Xie & anr. vs. OIC & ors. `
IN THE COURT OF SH. PAWAN KUMAR JAIN,
JUDGE, MACT-1 (CENTRAL), THC, DELHI.
Suit No. 440/2008
MACT No. 357531/16
Unique Case ID No. DLCT01-000644-2008
1. Sh. Zaixhu Xie
S/o Late Sh Mu Zhang Xie
2. Sh. Bijun Yu
W/o Sh. Mr. Zaishu Xie
Both Permanent Resident of:
Room No. 502 Building A1, #9 of Shuangjing Street
Panfu road, Guangzhou, China-510180
Address for communication in India:
C/o M/s Qualcomm India Pvt. Ltd.
5th floor, DLF Centre, Sansad Marg,
New Delhi-110001.
(Both petitioners through their duly constituted
attorney Ms. Usha Rao)
.......Petitioners
VERSUS
1. The Oriental Insurance Company Ltd.
Having its Head Office at:
Oriental House, A-25/27,
MACT No. 357531/16 (Old Suit No. 440/08) Page No. 1 of 36
Zaishu Xie & anr. vs. OIC & ors. `
Asaf Ali Road,
New Delhi-110002.
...........Respondent No.1
(Insurer )
2. Sh. Narender Parihar S/o Sh. Moti Lal R/o housing Colony, Bhind, Dist. Bhind Madhya Pradesh.
...........Respondent No.2 (Driver)
3. Sh. Rinku Pal S/o Sh. Ramein Pal R/o Roshni Ghar Road, Madhya Pradesh.
...........Respondent No.3
(Owner)
Date of filing of Claim Petition : 11.11.2008
Arguments heard on : 03.07.2018
Date of passing of Award : 31.07.2018
Present: Sh. Harish Dua, Advocate, counsel for
the petitioners
Sh. Pradeep Gaur & Sh. V. K. Gupta,
Advocates, counsel for respondent No.1. Respondent No. 2 & 3 are ex-parate AWARD:
MACT No. 357531/16 (Old Suit No. 440/08) Page No. 2 of 36 Zaishu Xie & anr. vs. OIC & ors. `
1. Present claim suit has been preferred by the petitioners under Section 166 & 140 of the Motor Vehicle Act, 1988 (in short M.V Act) claiming a compensation of ` 30,54,90,060/- in respect of fatal injuries caused to deceased Xie Xiaochao ( a resident of Guangzhou, China) in a motor vehicular accident that had taken place on 14.05.2008 within the jurisdiction of PS Sadar, Palwal, Haryana.
(i) Though the accident had not taken place within the jurisdiction of this Tribunal, yet claim suit has been filed before this Tribunal as respondent no.1 has been working for gain within the jurisdiction of this Tribunal.
2. Facts in brief as emerged from the claim petition are that deceased was working as Marketing Manager with Qualcomm Wireless Semiconductor Technologies Ltd. and he visited India in connection with the business of his company. It was alleged on 14.05.2008 he was returning from Agra to Delhi in a maruti esteem car bearing registration No. DL-1YB-0897. It was alleged that at about 11 PM when the car reached National Highway No. 2 (Palwal) within the jurisdiction of PS Sadar, Palwal, Haryana, offending truck bearing registration No. MP-07HB-1567 came from opposite direction at high speed in a rash and negligent manner and after crossing the road divider came on the road, on which the maruti esteem car was moving and hit in the right side of the car. Consequently, the deceased who was sitting in the rear MACT No. 357531/16 (Old Suit No. 440/08) Page No. 3 of 36 Zaishu Xie & anr. vs. OIC & ors. ` seat behind the driver sustained multiple fatal injuries. He was taken to hospital where he was declared brought dead. In this regard, an FIR No. 213/2008 for the offence punishable under Section 279/338/304A IPC was got registered at PS Sadar, Palwal, Haryana.
(i) It was alleged that offending truck was being driven by respondent no.2 whereas it was registered in the name of respondent no. 3 and insured with respondent no. 1.
3. Claim suit was contested by respondent no.1 by filing its written statement wherein respondent no.1 admitted that the offending truck was duly insured with it, but took the plea that since the driver was not holding a valid driving licence, insurance company is not liable to pay any compensation. It was further submitted that since deceased was not an Indian national, petitioners are not entitled for any compensation. It was further alleged that since the accident had taken place due to the sole rashness and negligence of driver of car, insurance company is not liable to pay any compensation.
(i) Respondent No.2 & 3 did not file written statement. Accordingly, vide order dated 05.05.2009, respondent no.2 was proceeded ex-parate whereas respondent no.3 was proceeded ex-parate 06.01.2010.
MACT No. 357531/16 (Old Suit No. 440/08) Page No. 4 of 36 Zaishu Xie & anr. vs. OIC & ors. `
4. On the basis of pleadings of both the parties, vide order dated 06.01.2010, following issues were framed:-
(i) Whether the deceased Xie Xiaochao died due of the injuries sustained by him in an accident which took place on 14.05.2008 because of rash and negligent driving of vehicle bearing no. MP-07HB-1567 by respondent no.2?
(ii) Whether the petitioners are entitled to any compensation, if so, to what amount and from whom?
(iv) Relief.
5. In order to prove their case, petitioners examined following witnesses:
PW1 Dr. J. P. Prasad, proved the postmortem report of deceased PW2 Sh. Zaishu Xie, father of deceased PW3 Sh. Anil Jacob, Director (H.R) Qualcomm India Pvt. Ltd.
PW4 ASI Ram Karan, IO of the case
PW5 Ms. Weiran Chen, proved the
education/working record of deceased PW6 Sh. Shakti Chand Dogra, eye witness MACT No. 357531/16 (Old Suit No. 440/08) Page No. 5 of 36 Zaishu Xie & anr. vs. OIC & ors. `
(i) In rebuttal, respondent No. 1 examined following witnesses:
R1W1 Sh. Niket Anand
R1W2 Sh. Hitender Bahardur
R1W3 Sh. Surender Singh Rajput
6. Since both the petitioners are resident of China, statement of petitioner No.1 was recorded through Commission. In his statement, he also disclosed their financial status and the same shall be used at the time of disbursement of compensation in compliance of clause 27 of FAO No. 842 of 2003 titled Rajesh Tyagi & ors. vs. Jaivir Singh & ors.
decided by Hon`ble High Court of Delhi on December 15, 2017.
7. I have heard rival submissions advanced by counsel for petitioners and respondent No.1, perused the record carefully and gave my thoughtful consideration to their contentions.
8. My issue-wise findings are as under:-
Issue No. 1:
Whether the deceased Xie Xiaochao died due of the injuries sustained by him in an accident which took place on 14.05.2008 MACT No. 357531/16 (Old Suit No. 440/08) Page No. 6 of 36 Zaishu Xie & anr. vs. OIC & ors. ` because of rash and negligent driving of vehicle bearing no. MP-07HB-1567 by respondent no.2?
FINDING:-
9. Learned counsel appearing for insurance company submitted that there is no iota of evidence to show that the accident had taken place due to rash or negligent driving of respondent no.2. It was contended that since the sole eye witness PW6 did not disclose the registration number of the offending truck, there is no evidence on record to show that the accident had been caused by the offending truck.
(i) Per contra, counsel appearing for petitioners refuted the said contentions by sagaciously arguing that the testimony of PW6 is sufficient to prove that the accident in question had taken place due to rash and negligent driving of respondent no.2.
(ii) PW 6 Shakti Chand Dogra was the driver of maruti esteem car (taxi). In his examination-in-chief he testified that he was returning from Agra to Delhi in his taxi and two Chinese nationals were travelling in his car. He further testified that he was driving his maruti esteem car (taxi) in the middle lane. At about between 11 to 11:15 PM when he crossed Palwal, he saw that one truck was coming from Delhi and going towards Agra, but the said truck all of sudden crossed MACT No. 357531/16 (Old Suit No. 440/08) Page No. 7 of 36 Zaishu Xie & anr. vs. OIC & ors. ` the central verge and came on the road which was leading towards Delhi and hit his car. Due to forceful impact of the truck, he became unconscious and regained his consciousness after about 15 minutes and found that his car was badly damaged and truck was lying in the field. One of the passengers had already died and another sustained multiple injuries. It was also revealed that the truck driver had already fled away from the spot. He informed the police. Police took him and injured to the hospital and seized both the vehicles i.e. car and truck vide memo Ex. PW4/1. He testified that seizure memo bears his signature at point A.
(iii) No doubt, in his cross-examination, he admitted that he saw the truck first time when the truck hit his car. But the same is not helpful to the respondents in any manner because it is not challenged in his testimony that the truck was plying on the road which leads from Delhi to Agra whereas the car was plying on the road which leads from Agra to Delhi and truck hit the car after crossing the road divider. Mere fact that PW6 had seen the truck first time when the truck hit his car is not helpful to the insurance company in any manner to show that there was any rashness and negligence on the part of car driver. Since, the truck hit the car after crossing the road divider, it establishes that the accident had taken place due to the sole rashness and negligence on the part of truck driver. Infact it is a fit case to invoke the doctrine of res-ispa-loquitor. PW6 clarified that speed of his car was MACT No. 357531/16 (Old Suit No. 440/08) Page No. 8 of 36 Zaishu Xie & anr. vs. OIC & ors. ` between 60-70 km/h. Though a suggestion was given that the speed of his car was about 100 km/h, but the same was denied. Assuming for the sake of arguments that the speed of the car was more than 70 km/h, but that is not helpful to the insurance company in any manner because the accident had not taken place due to high speed of car, but it had taken place due to the sole rashness and negligence of truck driver as truck hit the car after crossing the road divider.
(iv) Admittedly, PW6 did not disclose the registration number of the offending truck in his deposition, but the same is not helpful to the insurance company in any manner because he categorically deposed that the police seized both the vehicles vide memo Ex. PW4/1 and it bears his signature at point A. From the memo, it is clear that the registration number of the truck was MP-07-HB-1567. This clearly establishes that the accident had been caused by the offending truck.
(v) In view of the above, I am of the considered opinion that the testimony of PW6 is sufficient to hold that the accident had taken place due to the rashness or negligence of truck driver.
(vi) In view of above, Issue No. 1 is decided in favour of petitioners and against the respondents.
MACT No. 357531/16 (Old Suit No. 440/08) Page No. 9 of 36 Zaishu Xie & anr. vs. OIC & ors. ` Issue No.3 Whether the petitioners are entitled to any compensation, if so, for what amount and from whom?
10. Before proceeding further, I deem it appropriate to refer the judgment titled National Insurance Company Ltd. vs. Pranay Sethi & ors. SLP (Civil) No. 25590 of 2014 decided by the Constitution Bench of Supreme Court on October 30, 2017. Hon`ble Bench reconsidered all the previous judgments relating to just compensation under Motor Vehicle Act including Sarla Verma & ors. vs. DTC & another, 2009 (6) SCC 121; Reshma Kumari & others vs. Madan Mohan & anr (2013) 9 SCC 65 and Rajesh & others vs. Rajbir Singh & ors. (2013) 9 SCC
54.
(i) After analyzing all the precedents, Hon`ble Bench held as under:-
61. In view of the aforesaid analysis, we proceed to record our conclusions:-
(i) The two-Judge Bench in Santosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot MACT No. 357531/16 (Old Suit No. 440/08) Page No. 10 of 36 Zaishu Xie & anr. vs. OIC & ors. ` take a contrary view than what has been held by another coordinate Bench.
(ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent.
(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made.
The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
(iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
(v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced herein-
before.
(vi) The selection of multiplier
MACT No. 357531/16 (Old Suit No. 440/08) Page No. 11 of 36
Zaishu Xie & anr. vs. OIC & ors. `
shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.
(vii) The age of the deceased should be the basis for applying the multiplier.
(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be ` 15,000/-, ` 40,000/- and ` 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years.
11. Now, I proceed to examine the facts of the case at hand.
(i) In this regard, the testimony of PW5 is relevant. He testified that deceased was working in M/s Qualcomm Wireless Semiconductor Technologies Ltd. as Engineer since January 2001 and he also filed the copy of Labour Contract executed between the deceased and the company, copy of same is Ex. PW5/6. As per agreement, deceased joined the company on the monthly salary of RMB 16,210.29 Yuan. He also filed the salary slip of deceased for the month of January 2008 and May 2008, copy of the same are Ex. PW5/7 (colly). The salary for the month of May 2008 is for 14 days as deceased died in the accident on 14.05.2008.
(ii) The detail of the salary of the deceased in tabulated form is as under:
MACT No. 357531/16 (Old Suit No. 440/08) Page No. 12 of 36 Zaishu Xie & anr. vs. OIC & ors. ` Name of the Salary of Name of the Salary of May Heads January 2008 Heads 2008 In Yuan (RMB) In Yuan (RMB) (14 days) Basic Salary 43,470 Basic Salary 21,265.29 Travelling 758 Travelling 360.95 Allowance Allowance Meal Allowance 715 Meal Allowance 340.48 Housing 3,264 Housing 1,686.67 Allowance Allowance Total Income of 48,207 Unused Vacation 77,283.37 Salary Pay Housing Fund (-) 1,083 Performance 52,164.00 Contribution bonus Monthly (-) 1,600 Pro-rated New 13,269.02 Deduction Year Bonus Taxable Income 45,524 Total Income of 166,369.78 salary Tax Rate 30% Housing Fund (-) 1,083.00 Contribution Quick (-) 3,375 Monthly (-) 2,000.00 Deduction Deduction Tax Withheld on (-) 10,282 Taxable Income 163,286.75 Salary Bank Deposit 36,841.80 Tax Rate 45% Amount of Salary May 2007 24,872 Quick Deduction (-) 15,375.00 Bonus November 2007 51,733 Tax withheld on (-) 58,104.05 Bonus salary and Bonus New Year 43,470 Bank Deposit 107,182.73 Bonus Amount of Salary Taxable Income 1,20,075 Total Income 165,286.78 Taxs Rate 20% Total Tax 58,104.05 Withheld MACT No. 357531/16 (Old Suit No. 440/08) Page No. 13 of 36 Zaishu Xie & anr. vs. OIC & ors. ` Quick (-) 375 Total Bank 107,182.73 Deduction Deposit Amount Tax Withheld on (-) 23,640 Bonus Bank Deposit 96,435 Amount of Bonus Total Income 1,67,199 Total Tax 33,922.20 Withheld Total Bank 133,276.80 Deposit Amount
(iii) From the above table, it is clear that besides the salary, deceased was also getting yearly bonus as well as monthly bonus. New Year Bonus is equivalent to the basis monthly salary of deceased whereas monthly bonus is more than 50% of the basic salary. PW5 in his examination-in-chief testified that deceased was liable to pay income tax @ 30% on his income.
(iv) From the above, it is also clear that a sum of RMB 3,083 was deducted from the salary of deceased towards Housing Fund contribution and monthly deduction and after deduction, tax was calculated @ 30%. Tax was also deducted on the bonus in the month of January, it was calculated @ 20% while in May, it was calculated @ 45%. It appears that tax slab was variable according to the slab of income. In order to compute a just compensation, Tribunal is MACT No. 357531/16 (Old Suit No. 440/08) Page No. 14 of 36 Zaishu Xie & anr. vs. OIC & ors. ` placed reliance on the testimony of PW5 and assess the income of deceased after deducting tax @ 30%.
(v) Counsel appearing for insurance company contended that since the transport allowance and meal allowance are personal in nature, same is liable to be deducted from the total salary for the purpose of computation just compensation. No doubt, transport allowance is given to an employee to commute from house to office and back and meal allowance is given to an employee to compensate his expenses on meal during office hours. But it will not be appropriate to say that the said allowances are purely personal in nature. Since these allowances increase the purchasing power of the employee and enables him to save more money from his salary, such allowances cannot be considered merely personal allowances; rather same are part of income. Further, at the time of computation of just compensation, a fix portion is liable to be deducted towards personal and living expenses, which would also include the amount incurred on transportation and meal. If the said allowances are not included in the salary but simultaneously a fix portion is deducted from his income towards personal and living expenses, it would amount double deduction from the income of the deceased.
(vi) In view of the above, I am of the considered view that the transport and meal allowances are liable to be MACT No. 357531/16 (Old Suit No. 440/08) Page No. 15 of 36 Zaishu Xie & anr. vs. OIC & ors. ` included in the income at the time of assessing the income of the deceased for computation of just compensation.
(vii) In view of above, income of the deceased for purpose of just compensation is calculated as under:
Name of the Heads Amount
in RBM (Yuan)
Basic salary 45,568.47
(as per pay slip May 2008)
Travelling Allowance 773.46
(as per pay slip May 2008)
Meal Allowance 729.60
(as per pay slip May 2008)
Housing Allowance 3,614.29
(as per pay slip May 2008)
Total Income 50,685.83
(as per pay slip May 2008)
Less Deduction towards monthly 3,083.00
& Housing Fund
(as per pay slip May 2008)
Taxable Income 47,602.83
Gross Monthly Income 50,685.83
Taxable Monthly Income 47,602.83
Tax @ 30% on 47,602.83 14,280.84
Since for the purpose of just
computation actual income means 36,405.00
total income minus tax; monthly
actual income comes to
(50,685.83 -14,280.84)
Monthly bonus (50% of basic pay) 22,784.23
Tax @ 30% on bonus 6,835.27
MACT No. 357531/16 (Old Suit No. 440/08) Page No. 16 of 36
Zaishu Xie & anr. vs. OIC & ors. `
Actual Monthly bonus 15,948.96
Total Income 52,353.96
(salary + monthly bonus)
(36,405.00 + 15,948.96)
Total annual income 6,28,247.52
(52,353.96 X 12)
Annual Bonus 45,568.47
30% Tax on Annual Bonus 13,670.54
Actual Annual Bonus 31,897.00
( 45,568.47 - 13,670.54) (rounded off)
Total Income 6,60,144.52
(6,28,247.52 + 31,897.00)
(viii) Accordingly, annual income of the
deceased assessed at RMB 6,60,144.52 for computation of just compensation.
Addition towards Future Prospects:-
(i) As per passport, date of birth of deceased was 02.11.1973. Since the accident had taken place on 14.05.2008, it means that deceased was 34 years 06 months and 12 days old at the time of his death.
(ii) From the Labour Contract (Ex. PW5/6), it is clear that he was working on a fixed salary.
(iii) Since deceased was below 40 years old at the time of his death and was working on fixed salary, in view of the law laid down in Praney Sethi's case (supra), MACT No. 357531/16 (Old Suit No. 440/08) Page No. 17 of 36 Zaishu Xie & anr. vs. OIC & ors. ` petitioners are entitled to 40% addition in the income of deceased towards future prospects. Accordingly, a sum of RMB 264,057.80 is added in the income of the deceased towards future prospects.
Deduction towards personal and living expenses of the deceased:-
(i). Learned counsel appearing for the petitioners contended that since the petitioners are the old aged persons, they were financially dependent upon the income of deceased. It was contended that though both the petitioners are getting monthly pension from the government, but since pension is meagre, it cannot be said that they were not financially dependent on the income of deceased.
(ii). Per contra, counsel appearing for insurance company refuted the said contention by arguing that petitioner no.1 was getting RMB 5,625 per month whereas petitioner no. 2 was getting RMB 11,700 per month pension. Besides that both were getting RMB 30 per month from government of Guanjzhou being the senior citizens above 70 years old. It was urged that since both were getting handsom pension, it can safely be said that they were not financially dependent on the income of deceased. It was argued that since the petitioners were not financially dependent upon the income of the deceased, petitioners are entitled only for loss of estate to the extent of one-third. In MACT No. 357531/16 (Old Suit No. 440/08) Page No. 18 of 36 Zaishu Xie & anr. vs. OIC & ors. ` support of his contention, counsel placed reliance on the judgement Orientation Insurance Company Ltd. vs. Hari Om & ors. MAC Appeal no. 908/2011 decided by Hon`ble High Court of Delhi on 31.05.2012.
(iii). Perusal of the judgment reveals that in the said case, deceased was female who was self employed and as per ITR, her annual income was ` 70,365. The claim was filed by the husband of the deceased and married children of the deceased and no evidence had been led, which may show that they were financially dependent on the income of deceased. In the said matrix of facts, it was held that since respondents were not financially dependent on the income of the deceased, they are entitled only to the loss of estate to the extent of one-third of deceased income.
(iv). However, in the instant case, both the petitioners are aged about more than 70 years and they are not working anywhere. No doubt, they are getting pension, but there is no evidence to show that they were not financially dependent even partially on the income of deceased. Needless to say that in the old age, a person needs lot of financial assistance not only to maintain himself or herself, but he also requires substantial amount for his medial care. Mere fact that the petitioners are getting pension and petty amount of RMB 30 from the government of Guangzhou being senior citizens is not sufficient to hold that they were not MACT No. 357531/16 (Old Suit No. 440/08) Page No. 19 of 36 Zaishu Xie & anr. vs. OIC & ors. ` financially dependent even partially on the income of deceased.
(v). Perusal of cases Devi Dutt & ors. vs. Manish Sharma & ors. 2012 SCC online Delhi 2211; Future General India Ins. Co. Ltd. vs. Harish Chander & ors. MAC App. 526/2013 decided by Hon`ble High Court of Delhi on 04.05.2016 and Bajaj Allianz General Insurance Co. Ltd. vs. Shri Surender Kumar & ors. 2011 SCC online Delhi 2763 reveals that in all the above cases, claim petitions were filed by the legal representatives who were not financially dependent on the income of deceased, but loss of dependency was calculated after deducting amount as per number of dependent as prescribed in Sarla Verma's case (supra). In all the cases, contention of insurance company that claimants are entitled only to loss of estate was rejected.
(vi). As already stated that in the instant case though the petitioners are getting pension, yet there is no iota of evidence to show that said pension is sufficient enough to lead a decent life as they would be able to lead with the financial assistance of their deceased son. Pensions may be sufficient for their sustenance, but certainly may not be sufficient to meet their all requirements to live a dignified life, which they would be able to live with the financial assistance of their deceased son.
MACT No. 357531/16 (Old Suit No. 440/08) Page No. 20 of 36 Zaishu Xie & anr. vs. OIC & ors. `
(vii). In view of the above, I do not find any substance in the contention raised by the counsel for insurance company.
(viii). Since deceased was unmarried at the time of accident, 50% of the income is liable to be deducted towards personal & living expenses.
Selection of multiplier:
(i) Since deceased was above 34 years 06 months and 12 days old at the time of his death, in view of law laid down in Sarla Verma case (supra) and approved by the Apex Court in Pranay Sethi's case (supra), multiplier of 16 shall be apply in this matter.
Deduction towards amount received under Policy for accidental death:
(i) Learned counsel appearing for insurance company sagaciously argued that petitioner no.1 in his cross-examination fairly conceded that employer of deceased had purchased a insurance policy for accidental risk and under the said Policy, both the petitioners had received a sum of US$ 1,00,000. In view of law laid down in Helen C. Rebello (Mrs) and others Vs. Maharashtra State Road Transport Corporation & Anr. reported in (1999) SCC 90, the said amount is liable to be deducted from the total amount MACT No. 357531/16 (Old Suit No. 440/08) Page No. 21 of 36 Zaishu Xie & anr. vs. OIC & ors. ` of compensation.
(ii) Per contra, counsel appearing for petitioners refuted the said contention by arguing that since policy was purchased by the employer under a separate policy cover, said amount is not liable to be deducted.
(iii) Before dealing with the contention raised by the counsel for both the parties, I deem it appropriate to highlight the law laid down in Helen C. Rebello's case (supra), which was approved by the Apex court in his subsequent judgment Reliance General Insurance Company Ltd. vs. Shashi Sharma 2016 (9) SCC 627.
(iv) In Helen C. Rebello's case (supra), question arose before the Apex court was 'Whether the life insurance money of the deceased is to be deducted from the claimants' compensation receivable under the Motor Vehicles Act?'
(v) After considering the entire case law, it was held as under:
So far as the general principle of estimating damages under the common law is concerned, it is settled that the pecuniary loss can be ascertained only by balancing on one hand, the loss to the claimant of the future pecuniary benefits that would have accrued to him but for the death with the 'pecuniary advantage which MACT No. 357531/16 (Old Suit No. 440/08) Page No. 22 of 36 Zaishu Xie & anr. vs. OIC & ors. ` from whatever source comes to him by reason of the death. In other words, it is the balancing of loss and gain of the claimant occasioned by the death. But this has to change its colour to the extent a statute intends to do. Thus, this has to be interpreted in the light of the provisions of the Motor Vehicles Act, 1939. It is very clear, to which there could be no doubt that this Act delivers compensation to the claimant only on account of accidental injury or death, not on account of any other death. Thus, the pecuniary advantage accruing under this Act has to be deciphered, co-relating with the accidental death. The compensation payable under the Motor Vehicles Act is on account of the pecuniary loss to the claimant by accidental injury or death and not other forms of death. If there is natural death or death by suicide, serious illness, including even death by accident., through train, air flight not involving motor vehicle. would not be covered under the Motor Vehicles Act. Thus. the application of general principle under the common law of loss and gain for the computation of compensation under this Act must co-relate to this type of injury or deaths, viz, accidental. If the words "pecuniary advantage' from whatever source are to be interpreted to mean any form of death under this Act it would dilute all possible benefits conferred on the claimant and would be contrary of the spirit of the law. If the 'pecuniary advantage' resulting from death means pecuniary advantage coming under all forms of death then it will include all the assets movable, immovable, shares, bank accounts, case and every amount receivable under any contract. In other words, all heritable assets including what is willed by the deceased etc. This would obliterate both, all possible conferment of economic security to the claimant by the deceased and the intentions of the legislature. By such an interpretation the tortfeasor in spite of his wrongful act or MACT No. 357531/16 (Old Suit No. 440/08) Page No. 23 of 36 Zaishu Xie & anr. vs. OIC & ors. ` negligence, which contributes to the death, would have in many cases no liability or meagre liability. In our considered opinion, the general principle of loss and gain takes colour of this statute, viz., the gain has to be interpreted which is as a result of the accidental death and the loss on account of the accident death. Thus, under the present Act whatever pecuniary advantage is received by the claimant, from whatever source, would only mean which comes to the claimant on account of the accidental death and not other form of death. The constitution of the Motor Accidents Claims Tribunal itself under Section 110 is, as the Section states; "....for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, ....."
Thus, it would not include that which claimant receives on account other form of deaths, which he would have received even apart from accidental death. Thus, such pecuniary advantage would have no correlation to the accidental death for which compensation is computed. Any amount received or receivable not only on account of the accidental death but that would have come to the claimant even otherwise, could not be construed to be the "pecuniary advantage", liable for deduction. However, where the employer insures his employee, as against injury or death arising out of an accident, any amount received out of such insurance on the happening of such incidence may be an amount liable for deduction. However, our legislature has taken not of such contingency, through the proviso of Section 95. Under it the liability of the insurer is excluded in respect of injury or death, arising out of, in the course of employment of an employee.
This is based on the principle that the claimant MACT No. 357531/16 (Old Suit No. 440/08) Page No. 24 of 36 Zaishu Xie & anr. vs. OIC & ors. ` for the happening of the same incidence may not gain twice from two sources. This, it is excluded thus, either through the wisdom of legislature or through the principle of loss and gain through deduction not to give gain to the claimant twice arising from the same transaction, viz., same accident. It is significant to record here in both the sources, viz., either under the Motor Vehicles Act or from the employer, the compensation receivable by the claimant is either statutory or through the security of the employer securing for his employee but in both cases he receives the amount without his contribution.
(vi) Now I proceed to analysis the facts of the case at hand.
(vii) PW1 in his cross-examination fairly conceded that the employer of the deceased had purchased a Policy for accidental risk and further admitted that the premium of the said Policy was also used to be paid by the employer.
He also admitted that under the said Policy, they received a sum of US$ 1,00,000/-.
(viii) Since the petitioners have received pecuniary advantage on account of accidental death of their son under the insurance cover for accidental risk, which was purchased by the employer of the deceased and premium was used to be paid by the employer and not by the deceased, in view of law laid down in case Helen C. Rebello (supra), I am of the view that the said amount is liable to be MACT No. 357531/16 (Old Suit No. 440/08) Page No. 25 of 36 Zaishu Xie & anr. vs. OIC & ors. ` deducted at the time of computing just compensation.
Loss of income:-
(i) In view of the above, loss of income is calculated as under:
NAME OF THE HEAD AMOUNT (IN RMB)
Annual Income of deceased 660,144.52
40% addition of towards future prospects 264,057.80
Total 924,202.32
Less 50% deduction towards personal and 462,101.16
living expenses
Total 462,101.16
Selection of multiplier 16
Total loss of income 7,393,618.56
Less the amount towards insurance policy US$ 100,000.00 towards accidental risk Compensation under non-pecuniary heads:-
(i) In view of the law laid down in Pranay Sethi's case (supra), a sum of ` 15,000/- is awarded towards loss of estate and ` 15,000/- is awarded towards funeral expenses. In total ` 30,000/- is awarded to the petitioners under the above said two heads heads.
(ii) Since deceased was unmarried, loss of MACT No. 357531/16 (Old Suit No. 440/08) Page No. 26 of 36 Zaishu Xie & anr. vs. OIC & ors. ` consortium is not awarded.
(iii) Since, interest @ 9% per annum was awarded by the Apex Court in Municipal Corporation of Delhi vs. Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC), it is held that claimants shall be entitled to interest @ 9% per annum from the date of filing of claim petition i.e. 11.11.2008 till realization of the amount.
(iv) Both the parties have filed the exchange rate of RBM viz-a-viz INR and US$ viz-a-viz INR. As per the chart filed by the petitioners, 1 RMB was equivalent to ` 6.08806751538 whereas as per the respondents, it was ` 6.059074. Similarly, as per petitioners 1 US$ was equivalent to ` 42.510000 whereas as per respondents, its value was equivalent to ` 42.330. In order to convert the compensation amount in Indian currency, the value of 1 RMB and US$ as furnished by the respondents is accepted. Accordingly, the compensation amount is computed after taking the value of 1 RMB equivalent to ` 6.05 and value of 1 US$ equivalent to ` 42.33.
(v) Accordingly, claimants are entitled to compensation in respect of the death of deceased as under:
MACT No. 357531/16 (Old Suit No. 440/08) Page No. 27 of 36 Zaishu Xie & anr. vs. OIC & ors. ` NAME OF THE HEAD AMOUNT (IN ` ) Loss of Income 4,47,31,392.30 (RMB 7,393,618.56 X 6.05) Loss of estate 15,000 Funeral expenses 15,000 Total 4,47,61,392.30 Less amount received under accidental 42,33,000.00 risk policy (US$ 100,000 X 42.33) Total 4,05,28,392.30 Round off: 4,05,29,000s/-
(Rupees Crore Five Lac & Twenty Nine Thousands Only)
(v) The claimants shall also be entitled to interest @ 9% per annum from the date of filing of claim petition i.e. 11.11.2008 till realization of the amount.
Apportionment of Award:
(i) Since petitioners are the parents of deceased, both shall get 50% each of award amount. Their individual share is tabulated as under :
Name of the Relation Percentage Amount claimant with of (In ` ) deceased award amount Sh. Zaishu Xie Father 50% 2,02,64,500 Sh. Bijun Yu Mother 50% 2,02,64,500 MACT No. 357531/16 (Old Suit No. 440/08) Page No. 28 of 36 Zaishu Xie & anr. vs. OIC & ors. ` SPECIAL CIRCUMSTANCE FOR DISBURSEMENT:
(i) Admittedly, petitioners are senior citizens of above 70 years old and residents of China, in these special circumstances, on realization, entire award amount shall be transferred in their saving account maintained in a bank in China near the place of their residence.
(ii) In compliance of the directions given by Hon`ble High court in FAO No. 842/2003 dated December 15, 2017, Summary of the Award in the prescribed format-
IV A is as under:-
SUMMARY OF AWARD
(i) Date of accident 14.05.2008
(ii) Name of the Sh. Xie Xiaochao deceased
(iii) Age of the injured 34+ years
(iv) Occupation of the Marketing Manager deceased
(v) Income of the ` 4,47,31,392.30 deceased MACT No. 357531/16 (Old Suit No. 440/08) Page No. 29 of 36 Zaishu Xie & anr. vs. OIC & ors. `
(vi) Name, age and relationship of legal representative of deceased:
S.No. Name Age Relation
1. Sh. Zaishu Xie above Father
70 Yr.
2. Sh. Bijun Yu Above Mother
70 Yr.
COMPUTATION OF COMPENSATION
S.No. Heads Awarded by the
Claims Tribunal
7. Income of the deceased (A) ` 4,47,31,392.30
8. Less Personal expenses of the RMB 462,101.16
deceased (C) (50%)
9. Monthly Loss of dependency NA
(A+B)-C= D
10. Annual Loss of dependency RMB 462,101.16
11. Multiplier (E) 16
12. Total Loss of dependency RMB 7,393,618.56
13. Medical Expenses (G) NA
14. Add-Future Prospects (B) RMB 264,057.80
15. Compensation for loss of love and
affection (H)
16. Compensation for loss of consortium (I) NA
17. Compensation for loss of estate (J) ` 15,000/-
18. Compensation towards funeral ` 15,000/-
expenses (K)
19 TOTAL COMPENSATION
(F + G + H + I + J + K = L) (Rounded off)
(RMB 7,393,618.56- 100,000 US$) 4,05,29,000/-
(4,47,61,392.30 - 42,33,000.00)
Less amount received under
MACT No. 357531/16 (Old Suit No. 440/08) Page No. 30 of 36
Zaishu Xie & anr. vs. OIC & ors. `
Accidental risk Cover US$
20. RATE OF INTEREST AWARDED 9%
21. Interest amount upto to the date of ` 3,54,60,099/-
award (M) 09 yrs 08 months & 20 days
22. Total amount including interest (L + M) ` 7,59,89,099/-
23. Award amount released Entire award amount in special circumstances
24. Award amount kept in FDRs NIL
25. Mode of disbursement of the award Shall be amount to the claimant(s). (Clause 29) transferred in their personal account
26. Next Date for compliance of the award. 04.09.2018 (Clause 31) LIABILITY TO PAY:-
12. Learned counsel appearing for insurance company contended that since the driver of the offending truck was not holding a valid licence, insurance company is entitled for recovery rights.
(i) In this regard, testimony of R1W2 and R1W3 are relevant.
(ii) As per record, truck was being driven by respondent no. 2 and he was holding a driving licence bearing No. MP-30R-2008-0018175, which was purportedly issued from the Transport office, Bhind Madhya Pradesh.
MACT No. 357531/16 (Old Suit No. 440/08) Page No. 31 of 36 Zaishu Xie & anr. vs. OIC & ors. `
(iii) R1W3 Mr. Surender Singh Rajput, investigator of insurance company testified that he visited the Transport authority to verify the driving licence. But it was revealed that no such driving licence was issued in the name of respondent no.2. The report is Ex.RW1/B.
(iv) R1W2 is the official of Transport authority and he testified that as per record, the above said licence was never issued in favour of respondent no.2.
(v) From the testimony of above said witnesses, it becomes clear that licence in question was never issued in favour of respondent no.2 and same is fake. It is pertinent to state that during inquiry, respondent no. 2 did not produce any other licence which may show that he was holding a valid driving licence at the time of accident.
(vi) Since the licence was in the name of respondent no.2 and it has been established that it was not issued by the authority in favour of respondent no.2, it can safely be culled out that it must be in the knowledge of respondent no.2 that the licence was not genuine. Since respondent no. 2 was not holding a valid driving licence, he was not supposed to drive the truck on the road. But since respondent no.2 was driving the truck without valid driving licence, it can safely be culled out that there was a willful breach of term and condition of the Policy on his part.
MACT No. 357531/16 (Old Suit No. 440/08) Page No. 32 of 36 Zaishu Xie & anr. vs. OIC & ors. `
(vii) Now question arises whether there was any willful breach of any term and condition of the policy on the part of respondent no.3 (registered owner of the truck).
(viii) In order to prove willful breach on the part of respondent no. 3, onus was on the insurance company to establish that either it was in the knowledge of respondent no.3 or there was reason to believe for respondent no.3 that the licence of respondent no.2 was fake.
(ix) However, during inquiry insurance company failed to produce any such evidence in this regard. Mere fact that during inquiry, it is established that licence of respondent no.2 was fake is not sufficient to hold that it was in the knowledge of respondent no. 3 that the licence was fake. Similarly, mere fact that respondent no.3 did not get licence verified prior employing respondent no.2 is not sufficient to hold that respondent no.3 had any reason to believe that the same was fake. It is pertinent to state that there is no provision under Motor Vehicle Act which casts a duty on the employer to get the licence verified prior to employing a driver. Since respondent no. 2 was holding a licence, the possibility that respondent no.2 misled respondent no.3 in order to get employment can not be ruled out. In the absence of any cogent evidence on record, I am of the view that insurance company failed to establish that there was any willful breach of MACT No. 357531/16 (Old Suit No. 440/08) Page No. 33 of 36 Zaishu Xie & anr. vs. OIC & ors. ` any term and condition of the Policy on the part of respondent no.3.
(x) In view of above, I am of the view that insurance company is entitled to recover the award amount from respondent no.2 only without filing a separate suit, but after satisfying the award.
(xi) Since the offending vehicle was registered in the name of respondent no.3 and it was being driven by respondent no.2 and insured with respondent no.1, all shall be jointly and severally liable to pay compensation. However, insurance company shall be entitled to recover the award amount from respondent no.2 without filing a separate civil suit but after satisfying the award.
(xii) In view of above, Issue No. 2 is decided is decided in favour of petitioners/claimants and against the respondents.
13. RELIEF:
(i) Since the offending vehicle was insured with respondent no. 1 (The Oriental Insurance Company Ltd.), respondent no. 1 is directed to deposit a sum of ` 4,05,29,000/- with interest @ 9% per annum from the date of filing of petition i.e. 11.11.2008 till realization of the MACT No. 357531/16 (Old Suit No. 440/08) Page No. 34 of 36 Zaishu Xie & anr. vs. OIC & ors. ` amount with Nazir of this Court within 30 days under intimation to the petitioners failing which Respondent No. 1 shall be liable to pay interest @ 12% per annum for the period of delay beyond 30 days. However, respondent No.1 (insurance company) shall be entitled to recover the award amount from respondent no.2 without filing a separate civil suit but after satisfying the award.
(i) Insurer, driver and owner are also directed to place on record the proof of deposit of the award amount, proof of delivery of notice in respect of deposit of the amount with the Tribunal to the claimants and complete details in respect of calculation of interest etc. in the court within 30 days from today.
(ii) A copy of this judgment be sent to Respondent No.1 for compliance within the time granted.
(iii) Nazir is directed to place a report on record on September 04, 2018 in the event of non-receipt/deposit of the compensation amount within the time granted.
(iv) In terms of clause 31 & 32 of the FAO No. 842/03 Rajesh Tyagi & others Vs. Jaibir Singh & Ors. order dated December 12, 2014, copy of this award be sent to the concerned court of Ld. Metropolitan Magistrate and Secretary MACT No. 357531/16 (Old Suit No. 440/08) Page No. 35 of 36 Zaishu Xie & anr. vs. OIC & ors. ` DLSA, Central District for information and necessary action.
(v) File be consigned to Record Room.
Announced in open court
on this 31st day of July, 2018 (PAWAN KUMAR JAIN)
Judge, MACT-1 (Central),
Tis Hazari Courts, Delhi/sv
Digitally signed
PAWAN by PAWAN
KUMAR JAIN
KUMAR Date:
JAIN 2018.07.31
16:04:43 +0530
MACT No. 357531/16 (Old Suit No. 440/08) Page No. 36 of 36