Under
Islamic perspective, the one who is at fault for causing accident would be
judged a bit different compared in Common Law. The driver would be punished
depends on their behaviour in driving and evidence in proving it. In Syaria
Law, a person who caused the accident would be liable to pay for ‘Diya’ or
‘Blood Money’. Diya is an Arabic word means “rendering” and would be used to
pay for compensation for victim’s dependant when victims died in the accident. In
Islam, Allah legislated Diya in order to protect rights and console the family
of the victim and at the same time, to prevent people from committing such
crimes since nature of law in Islam was legislated as a preventive measure for
society.
However,
it must be noted that Islam does not punish the individual for something that
is out of their control. Means that those who made mistake is forgiven, but
still, if the accident happened on part of negligence of the person at fault,
then they still have to pay compensation for victim’s family. It must be noted
that only the one who at fault must pay Diya to victim’s dependant. So, if the
accident happened 100% by the victim’s fault, then the defendant would not be
liable to pay for Diya at all. It is almost the same as contributory negligence
under Common Law. In advance, if the accident happened partly on the fault of
victim, and partly on the fault of defendant, then he would only be liable to
pay on his part because Islam only punishes a person based on fault[1].
Meanwhile, where there are more than one person who at fault, so the punishment
is jointly liable. They would be liable to pay for Diya for victim’s dependant[2].
On
the other hand, according to Shaykh Ibn ‘Uthaymeen in his essay, ‘Ahkaam
Hawaadith al-Sayaaraat’ or “Rulings on auto accidents”, when a passenger who
got in the car with the driver by his own free will died by the cause of the
driver’s aggressiveness in driving such as speeding more than provided speed,
or slamming brakes for no reason, or because of negligence by the driver, then
there would be two kind of expiation must be offered by the driver which is freeing
a slave for each human life. If he cannot do that, then he must fast for two
consecutive months and not break the fast except for a legitimate sharie excuse
such as travelling, sickness, pregnant and it would be dangerous for the health
of her and baby and any other excused provided under Islam. The driver would
also be liable to pay for compensation for any property damaged or destroyed
and diyah for the lives lost must also be paid by him. However, when the
accident happened because the driver tried to avoid danger and the accident
cannot be avoided, so, he would not be liable for expiation or Diya since a
person who do good shall not be punished[3].
These rules has been stated in Al-Quran;
“It is not for a believer to kill a believer
except (that it be) by mistake; and whosoever kills a believer by mistake, (it
is ordained that) he must set free a believing slave and a compensation (blood
money, i.e. Diya) be given to the deceased’s family unless they remit it. If
the deceased belonged to a people at war with you and he was a believer, the
freeing of a believing slave (is prescribed); and if he belonged to a people
with whom you have a treaty of mutual alliance, compensation (blood money —
Diya) must be paid to his family, and a believing slave must be freed. And
whoso finds this (the penance of freeing a slave) beyond his means, he must
fast for two consecutive months in order to seek repentance from Allaah. And
Allaah is Ever All‑Knowing, All‑Wise”
(Surah al-Tawbah
9:91)
Apart
from that, there is an issue under Islamic Law whether insurance company would
be liable to pay for the victim’s dependant since Diya’ supposedly to be paid
by the defendant himself and the hukum of involving with insurance company when
it comes to fatal accident. According to Shaykh Ibn Jibreen, it is permissible
because these companies are committed to bear costs incurred by the one who is
insured by them. So, there is no reason to refrain from doing that as long as
they are obligated to pay for the compensation.
So
under Syaria perspective, we are obliged to obey government traffic rules and
regulations that are not repugnant to stipulations of the shariah. This is
under the reason that rules and regulations formulated for vehicles are under
the jurisdiction of the government administration for safety and security of
people at large. It is a religious duty to protect life and property. Then, if
we violate any rule, we not only commit a sin, but also break our promise or
vow that we have rendered to the government.
REFERENCES
Sarah. (n.d.). Caught in the accident in the UAE? Know your legal rights better!
Retrieved
13th
May 2015, from http://www.lawyersuae.com/advocates/caught-in-an-accident-in-the-uae-know-your-legal-rights-better
Khalid Saifullah. (n.d.). Fiqh of
traffic- walking and driving. Retrieved 13th May 2015, from
[1] Fataawa
Islamiyyah, 3/360
[2] This
is the view of the majority of scholars, including al-Hasan, ‘Ikrimah,
al-Nakha’i, al-Thawri, Maalik, al-Shaafa’i, and the ashaab al-ra’i.
[3] This
essay was published in the official journal of the Imam Muhammad ibn Sa’ood
Islamic University, 12 Sha’baan 1409 AH.
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