Shri Kazi, the learned Counsel appearing for the appellants, submitted that as per the principles of Mohammedan law, appellant No. 1 father Abdul Raheman being the heir of deceased Mohammed Shafi is entitled to half of the total compensation and mother and widow to the extent of 1/4th each. We gave anxious consideration on this aspect. However, the compensation is being paid taking into consideration the dependency of the claimants. We are of the opinion that we are not guided by the apportionment as provided under the Mohammedan law.
{Para 5}
6. Appellant No. I father Abdul Raheman is aged 61 whereas mother of deceased is aged about 43. At the time of incident, appellant No. 3 Shahnazbanu was hardly aged about 28. Her dependency is comparatively more than appellants Nos. 1 and 2, taking into consideration her age. We, therefore, feel that it would be just and reasonable to pay half of the amount of compensation to appellant No. 3 and rest of the amount in equal share i.e. 1/4th to each appellant No. 1 and 2.
IN THE HIGH COURT OF BOMBAY
Decided On: 30.11.1988
Abdul Rahman and Ors. Vs. Dayaram and Ors.
Hon'ble Judges/Coram:
M.M. Qazi and Ashok A. Desai, JJ.
Author: Ashok A. Desai, J.
Citation: 1989 (2) T.A.C. 423, 1(1989)ACC226, MANU/MH/0742/1988.
1. This appeal is directed against judgment dated 19-12-1986 dismissing the entire claim of compensation by the Motor Accident Claims Tribunal, Akola. Deceased Mohammed Shafi was in the private employment as a driver. On 29-9-1983 at 2.30 a.m. he was crushed by Truck No. MHV 7703 while he was sleeping in the premises of Government Milk Dairy, Akola, at a place which is meant for parking of the trucks which come for loading and unloading milk cans. His parents and widow presented the claim petition Under Section 110-A of the Motor Vehicles Act claiming compensation of Rs. 1 lac for loss of life. In support of the claim, the claimants have examined P.W. 1 Shri Tayade, Security Officer of the Milk Scheme, PW 2 Abdul Rahim, father of the deceased and PW 3 Abdul Hamid, the Conductor. The learned Member of the Tribunal, taking into account evidence of non-applicant No. 1 Dayaram driver of the truck, observed at the time of accident that when he turned the truck to the right side for approaching the main road, the rear wheel of the driver side run over Mohammed Shafi and on hearing shrieks, the truck was immediately halted. Taking into account the entire evidence, the learned Member of the Tribunal reached the conclusion that it cannot be said that deceased was not negligent in sleeping at the place at the time of the incident. He further observed that Shri Dayaram, driver of the truck No. MHV 7703, cannot be said to have failed to take that care which an ordinary prudent man in his place would have taken. In his finding, the learned Member of the Tribunal reached the conclusion that the accident was due to exclusively negligence and carelessness on the part 'of deceased Mohd. Shafi and as such the petitioners are not entitled to claim any compensation. The learned Member of the Tribunal therefore rejected the claim petition, by order dated 19-12-1986. This Award has been impugned herein.
2. We have heard Shri Kazi, the learned Counsel appearing for the appellant and Advocate Shri Kukade, for the respondent No. 3-Insurance Company. According to Shri Kazi even admitting, the deceased was sleeping at a place which is normally no meant for the purpose. However, according to Shri Kazi, the driver Shri Dayaram if he had acted with due care and caution, would have averted the incident and would have saved Late Mohd. Shafi. Shri Kazi, therefore, submitted though there was negligence on the part of the deceased, the act of Shri Dayaram driver is not free from blemish. Shri Kazi took us through the evidence and various findings of the learned Member of the Tribunal. It is true that the deceased Mohammed Shafi acted in an irresponsible manner in taking sleep at the place meant for parking vehicles. However, in our opinion, immediately after starting the truck, driver Dayaram could have seen Mohammed Shafi who was sleeping there. It appears that driver Dayaram was not alert and he has by his contributory negligence, in our estimate, of 40 per cent made himself responsible to the incident. However, we find that sleeping at a place where from the trucks for loading and unloading were coming and going, the negligence of deceased Mohammed Shafi was of a higher degree and we estimate it to 60 per cent. In view of this, the learned Member of the Tribunal was not wholly justified in rejecting the claim of the petitioners in its entirety.
3. Mohammed Shafi at the time of incident was aged about 28 years. He was receiving total monthly remuneration of Rs. 400/-. His total life span would be 65 years. It being a private employment normally he would have continued to earn upto the age of 60. Thus, he would have supported the members of his family for a period of 32 years. Out of his earning of Rs. 400/-, as a normal estimate he would have spent Rs. 250/- on the members of the family. In view of this, during the span of 32 years, he would have contributed Rs. 96000/- towards the maintenance of the members of the family.
4. As we have held the contributory negligence on the part of Mohammed Shafi being 60 per cent, the amount to that extent is liable to be deducted. The claimants are, therefore, entitled after deduction of Rs. 38,400/-. Since the amount is being paid in lump-sum, we further grant a discount of 10 per cent. As such, the amount of Rs. 35650 is payable to the claimants.
5. Shri Kazi, the learned Counsel appearing for the appellants, submitted that as per the principles of Mohammedan law, appellant No. 1 father Abdul Raheman being the heir of deceased Mohammed Shafi is entitled to half of the total compensation and mother and widow to the extent of 1/4th each. We gave anxious consideration on this aspect. However, the compensation is being paid taking into consideration the dependency of the claimants. We are of the opinion that we are not guided by the apportionment as provided under the Mohammedan law.
6. Appellant No. I father Abdul Raheman is aged 61 whereas mother of deceased is aged about 43. At the time of incident, appellant No. 3 Shahnazbanu was hardly aged about 28. Her dependency is comparatively more than appellants Nos. 1 and 2, taking into consideration her age. We, therefore, feel that it would be just and reasonable to pay half of the amount of compensation to appellant No. 3 and rest of the amount in equal share i.e. 1/4th to each appellant No. 1 and 2.
7. In view of our reasoning, the appeal is partly allowed. The respondents to pay to the appellants, total amount of Rs. 35650/-. As per the apportionment indicated above i.e. 50 per cent to appellant No. 3 Shahnazbanu and 25 per cent to each appellant No. 1 and 2. No order as to costs.
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