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Madhya Pradesh High Court · body

2007 DIGILAW 1211 (MP)

JALISA BEGUM v. JAGDISH SAHU

2007-11-22

ARUN MISHRA, S.A.NAQVI

body2007
Judgment S.A.Naqvi, J. ( 1. ) This appeal has been preferred by the claimants for enhancement of compensation amount being aggrieved by award dated 27-11-04 passed by the First Additional Motor Accident Claims Tribunal, Chhatarpur in Claim Case No. 58/1996 whereby the claim petition filed by the petitioner Smt. Jalisa Begum and Manzoor Khan has been dismissed. ( 2. ) The admitted facts of the case are that the respondent no.2, Smt. Mammidevi Chourasia was the owner of bus No. UP-78B-9243, the respondent no.1, Jagdish Sahu was driver and the respondent no.3, the Oriental Insurance Company Ltd. was the insurer of the bus on the date of accident. ( 3. ) The case of the appellants in a nutshell is that Smt. Jalisa Begum was legally wedded wife of the deceased Maksud Ali and Manzoor Khan was the son of Jalisa Begum and the deceased. The age of Maksud Ali was 26 years and he was a Paledar and he was earning Rs. 125-150 per day. On 15-7-96 Maksud Ali went to Bizawar for his work of labour. At about 10:00 A.M. he was sitting near Ashok-ki-lat. The respondent no. 1 by driving bus No. UP-78B-9243 rashly and negligently dashed Maksud Ali. Maksud Ali was badly injured and succumbed to the injuries. The appellants were dependent upon the deceased Maksud Ali. They filed claim petition No. 58/96 for Rs. 9,80,000/-along with the parent of the deceased Shafi Mohammad @ Dhannu Khan and Smt. Mahmudan Begum. ( 4. ) The respondents denied the case of the appellants and they averred that Jalisa Begum is not the wife and the appellant Manzoor Khan is not the son of the deceased Maksud Ali, they are not entitled to any compensation amount. The name of the wife of the deceased was Jalilunisha. She was not having any child. Jalulnisha has died before the death of Maksud Ali. The age of Maksud Ali was 50 years and he was suffering from bronchitis. He was unable to carry out Palledari work. The power of attorney holder, the respondent no.2, Brij Kishore was removed from 1-8-96. The bank and Brij Kishore were informed in time in this respect. If after 1-8-96, he has carry out any work in respect of the vehicle, then the respondent no. 2, is not responsible to the action of Brij Kishore. The power of attorney holder, the respondent no.2, Brij Kishore was removed from 1-8-96. The bank and Brij Kishore were informed in time in this respect. If after 1-8-96, he has carry out any work in respect of the vehicle, then the respondent no. 2, is not responsible to the action of Brij Kishore. The respondent no.3, contended that on 15-7-96, Brij Kishore insured the ill-fated bus by forgery when insured came to know about the accident and collected the information about Brij Kishore Chourasia it came to know that the cover note No. 20717 was cancelled from 15-7-96 and an affidavit was filed in this respect. The amount of premium was returned to Shri Brij Kishore Chourasia by cheque. The respondent no.2, on 11-10-96 again insured the bus with the respondent no. 3, the Oriental Insurance Company Ltd. Hence, insurer is not liable to indemnify the owner. ( 5. ) The Tribunal framed five issues. After hearing learned counsel for both the parties, perusing evidence and material on record, partly allowed the claim petition and awarded Rs. 2,22,000/- to the parents of the deceased and dismissed the petition pertaining to the appellants, holding that Smt. Jalisa Begum was not legally wedded wife of the deceased and appellant no.2, Manzoor Khan, is not son of Maksud Ali, being aggrieved by the impugned award, the appellants have preferred this appeal on various grounds. ( 6. ) We have heard the learned counsel appearing for the parties, perused the impugned award, evidence and material on record. ( 7. ) The learned counsel for the appellants urged that there is sufficient evidence on record to prove that the appellant no. 1, Jalisa Begum is legally wedded wife of Maksud Ali and Manzoor Khan is the son of the deceased Maksud Ali. The Tribunal erred in appreciating the evidence in this respect in right perspective, the impugned award is on the lower side. The Tribunal committed error in assessing the monthly income of the deceased. The award passed by the Tribunal is erroneous. Contrary to that, learned counsel for the respondents supported the impugned award and urged that award passed by the Tribunal is legal. ( 8. ) As per the provisions of Mohammedan Law, the marriage between the parties is a contract. The Tribunal committed error in assessing the monthly income of the deceased. The award passed by the Tribunal is erroneous. Contrary to that, learned counsel for the respondents supported the impugned award and urged that award passed by the Tribunal is legal. ( 8. ) As per the provisions of Mohammedan Law, the marriage between the parties is a contract. As per Section 253 of the Mohammedan Law, a marriage may be valid (Sahih), or irregular( Fasid), or void (Batil) from the beginning. As per Section 254 of the Mohammedan law, a marriage contracted without witnesses is required by Section 252 is irregular, but not void. It is essential to the validity of the marriage that there should be a proposal made by or on behalf of one of the parties to the marriage, and an acceptance of the proposal by or on behalf of the other, in the presence and hearing of two male or one male and two female witnesses, who must be sane and adult Mohammedans. The proposal and acceptance must be expressed at one meeting; a proposal made one meeting and an acceptance made at another meeting do not constitute a valid marriage. Neither writing nor any religious ceremony is essential. Every Mohammedan of sound mind, who has attained puberty, may enter into a contract of marriage. Puberty is presumed, in the absence of evidence, on completion of the age of fifteen years. As per Section 268 of the Mohammedan law, marriage will be presumed in the absence of direct proof, from; (a) Prolonged and continual cohabitation as husband and wife or (b) the fact of the acknowledgment by the man, of the paternity of the child born to the woman, provided all the conditions of a valid acknowledgment mentioned in Section 344 are fulfilled or (c) the fact of the acknowledgment by the man of the woman as his wife. The presumption does not apply if the conduct of the parties was inconsistent with the relation of husband and wife nor does it apply if the woman was admitted a prostitute before she was brought to the mans house. The mere fact, however, that the woman did not live behind the parda, as the admitted wives of the man did, is not sufficient to rebut the presumption. The mere fact, however, that the woman did not live behind the parda, as the admitted wives of the man did, is not sufficient to rebut the presumption. Mahr or dower is a sum of money or other property which the wife is entitled to receive from the husband in consideration of the marriage, whether prompt dower or deffered dower. ( 9. ) As per Section 308 of Mohammedan law, any Mohammedan of sound mind, who has attained puberty, may divorce his wife whenever he desires without assigning any cause. As per Section 310 of the Mohammedan Law, divorce( Talaq) may be oral or in writing (1) Oral Talak- No particular form of words are prescribed for effecting a talak. If the words are express(saheeh) or well understood as implying divorce no proof of intention is required. The kinds of Talaq are (i) Talak ahsan (ii) Talak hasan (iii) Talak-ul-biddat or talak-i- badai. ( 10. ) Keeping in mind the aforementioned principles of law of marriage and talak of Mohammedan, we are considering the evidence adduced by the parties in this respect. Jalisa Begum (AW-1), stated that deceased Maksud Ali was her husband and appellant no.2, Manzoor Khan is their son. She deposed that her father-in- law and mother-in-law are alive. She denied her previous marriage with Munna Khan in paragraph-5 of her statement. She is ignorant of the fact that the first wife of the deceased Maksud Ali had died. She deposed that her Nikah with deceased Maksud Ali was performed by a female Kazi named Sona. She admitted that on 25th July 1979, she entered into marriage with Munna Khan S/o Sheikh Basir resident of Chhattarpur. The Nikahnama is Exhibit D-1. She again reiterated that she entered into marriage with deceased Maksud Ali second time. She also deposed that after marriage with Maksud Ali, Manzoor Khan was born out of their wedlock. Though, in paragraph-9 she deposed that Manzoor Khan, the appellant is son of Munna Khan but she denied the factum of marriage with Munna Khan and birth of Manzoor Khan out of wedlock of Munna Khan. She reiterated that Manzoor Khan is son of the deceased Maksud Khan. The appellant Jalisa Begum is an illiterate rustic women and Manzoor Khan is her minor son. She do hot understand the implication of her admissions and denial regarding some facts in the evidence. She reiterated that Manzoor Khan is son of the deceased Maksud Khan. The appellant Jalisa Begum is an illiterate rustic women and Manzoor Khan is her minor son. She do hot understand the implication of her admissions and denial regarding some facts in the evidence. Admittedly, the parents of Maksud Ali are alive. The name of the father of Maksud Ali is Shafi Mohammad @ Dhannu Khan. Witnesses attended the marriage of Maksud Ali. He deposed that Kazi had read the Nikah of Maksud Ali. He deposed that first wife of Maksud Ali has already died. Shafi Mohammad, the father of Maksud Ali deposed that after death of first wifeof Maksud Ali, Nasima, he contracted second marriage with appellant no.1, Jalisa. He deposed that Manzoor Khan, respondent no.2 is son of first wife of Maksud Ali. In cross- examination he also reiterated the factum of marriage of appellant no.l with deceased Maksud Ali. He deposed that marriage took place in village Kurraha, he is aware of the fact that if the women is not divorced then legally second marriage could not be performed. In cross-examination, he admitted that after 2- 3 years of marriage with Maksud Ali with appellant no.l, Manzoor Khan was born. Shafi Mohammad sworn in affidavit Exhibit D-2 and Exhibit D-3 and mentioned in its affidavit that appellant no. 1, Jalisa Begum is legally wedded second wife of Maksud Ali. He received Rs. 34,000/-as compensation from the owner of the bus. It is quite clear that the interest of the appellants and the respondents Shafi Mohammad clashes in connection with the compensation amount, hence, it is not possible that he will falsely depose that appellant no.l, Jalisa Begum is legally wedded wife of deceased Maksud Ali. There is overwhelming evidence on record to prove that Jalisa Begum got married with deceased Maksud Ali and out of their wedlock Manzoor Khan was born, she lived with Maksud Ali as wife for a quite long time. There is no evidence on record to prove that alleged first husband Munna objected the marriage of Jalisa Begum with Maksud Ali on the ground that he has not given her divorce. In the facts and circumstances of the case, it shall be presumed that Munna Khan has given divorce(talak) to appellant no.l, Jalisa Begum and thereafter she contracted second marriage with deceased Maksud Ali, if any marriage took place between them. In the facts and circumstances of the case, it shall be presumed that Munna Khan has given divorce(talak) to appellant no.l, Jalisa Begum and thereafter she contracted second marriage with deceased Maksud Ali, if any marriage took place between them. Hence, marriage of Maksud Ali and the appellant no. 1, Jalisa Begum, is valid and Manzoor Khan is valid son of deceased Maksud Ali and Jalisa Begum. The Tribunal on minor contradictions in the evidence of Jalisa Begum and admission of Jalisa Begum which are of no avail, held that their marriage was illegal. As per above discussion and non- examination alleged husband Munna Khan, evidence of Rajkumar, Gauri Shankar Singh, Jagdish Sahu and Pradip Kumar Shrivastava, non-appellants witnesses is not reliable in respect of marriage of Jalisa Begum with Munna Khan and in respect of marriage of Jalisa Begum with Maksud Ali without divorce with Munna Khan. It is clear from the evidence that the deceased Maksud Ali and his father Shafi Mohammad @ Dhannu Khan had acknowledge the marriage of Jalisa Begum with Maksud Ali and in paternity appellant Manzoor Khan and hence, there is presumption of prolonged and continual cohabitation by Maksud Ali as husband with Jalisa Begum as wife. We are of the considered opinion and it is proved by cogent and overwhelming evidence and circumstances on record that the marriage of Jalisa Begum with Maksud Ali was valid marriage and Manzoor Khan is legal son of the deceased Maksud Ali and Jalisa Begum. Consequently, we set aside the findings arrived at by the Tribunal in this respect. Consequently, we hold that the appellants are also entitled to get compensation amount due to the death of Maksud Ali in a vehicular accident. ( 11. ) Jalisa Begum(AW-l) deposed that her husband was earning Rs. 150 per day. He was giving Rs. 100/- per day to her for maintaining home affairs. This fact has not been controverted in cross-examination. Karim (AW-2) has also deposed that deceased was earning Rs. 100-200/- per day by doing labour. The father of the deceased Shafi Mohammad (AW-3) deposed that Maksud Ali used to earn Rs. 1000-2000/- per day. 150 per day. He was giving Rs. 100/- per day to her for maintaining home affairs. This fact has not been controverted in cross-examination. Karim (AW-2) has also deposed that deceased was earning Rs. 100-200/- per day by doing labour. The father of the deceased Shafi Mohammad (AW-3) deposed that Maksud Ali used to earn Rs. 1000-2000/- per day. Though, Jagdish Sahu, (NAW-1) and Rajkumar have deposed that due to old age and illness , the deceased Maksud was not doing any work and he was not earning a single penny but learned Tribunal did not relied on the testimony of these witnesses and held that the deceased was working as a labourer and he was earning money. On going through the evidence in this respect, we deem it proper to hold that at the time of accident, the deceased was earning Rs. 3000/- per month i.e, Rs. 36,000/- p.a. Deducting l/3rd customary amount from the annual income towards the expenditure of the deceased which have occurred if he had been alive, the dependency of appellants and respondent nos. 4 and 5 on deceased comes to Rs. 24,000/-p.a. Looking to the age of the deceased, the multiplier of 18 can be safely used. Consequently, the loss of dependency of appellants and respondent nos. 4 and 5 comes to Rs. 24,000 x 18= Rs. 4,32,000/-. They are entitled to compensation of Rs. 40,000/- under the customary heads of loss of estate, funeral expenses, loss of expectancy of life inclusive of Rs. 10,000/- to the widow for loss of consortium. Consequently, the appellants and respondent nos. 4 and 5 are entitled to get compensation amount of Rs. 4,72,000/-( Rupees Four Lacs Seventy Two thousand only). ( 12. ) Consequently, the appeal is allowed. The compensation amount is enhanced from Rs. 2,22,000/- to Rs. 4,72,000/-. The appellants and respondent nos. 4 and 5 are entitled to get compensation amount from the respondents. Respondents are jointly and severally liable to pay compensation amount, the enhanced compensation amount shall carry interest @ 7% p.a from the date of filing of the claim petition before the Tribunal till realisation. Out of the compensation amount, the appellant no. 1, Smt. Jalisa Begum shall get 35% of the compensation amount. The appellant, Manzoor Khan shall get 35% of the compensation amount and the respondent nos. 4 and 5 shall get equally 30% of the compensation amount. Out of the compensation amount, the appellant no. 1, Smt. Jalisa Begum shall get 35% of the compensation amount. The appellant, Manzoor Khan shall get 35% of the compensation amount and the respondent nos. 4 and 5 shall get equally 30% of the compensation amount. The compensation amount of Manzoor Khan shall be deposited in fixed deposit in a nationalised bank for a period of seven years. No order as to costs. Appeal allowed.