DhakaTribune
Tuesday December 19, 2017 02:16 AM

A good precedent

  • Published at 06:42 PM December 05, 2017
  • Last updated at 12:05 PM December 06, 2017
A good precedent
Tort law is needed for road fatality casesPhoto: RAJIB DHAR

The rights of road crash victims should not be ignored

The law of tort, which derives from the French word meaning “wrong,” has a very theoretical presence in Bangladesh.

It is an old legal concept where the courts provide remedy in response to a civil wrong. In the English legal system, it is developed through “forms of action” and writs which were brought to the courts.

Many of these claims were injuries due to negligence, a liability that covers most of tort law. A person can be held liable for causing injury or death to another as a result of his negligence. This includes road accidents due to negligent driving and liabilities therein.

Unlike its neighbours, claims regarding compensation for negligence are unfamiliar in Bangladesh. Therefore, most compensation claims go unsought. Victims of road accidents remain unaware of their legal rights.

But with the rise of unfavourable events, the law is adapting itself to make room for claims regarding compensation for negligence. This leads to the question: Could this be the much-needed evolution in our legal system?

On December 3 the High Court ordered the concerned authorities to pay Tk4.61 crore as compensation to the family of the renowned filmmaker Tareque Masud, who died in a fatal car crash in 2011.

The order was passed by the HC bench of Justice Zinat Ara and Justice Kazi Md Ejarul Haque Akondo. Following the order, driver Jamir Uddin has to give Tk30 lakh; the company which insured the bus, has to give Tk80,000; and owners of the vehicle has to give the rest of the money in three months after receiving the full judgment of the HC.

The Bangladeshi filmmaker, along with his companions, was killed in a road crash in 2011. The micro-bus carrying the team to Manikganj town collided head-on with a bus on the Dhaka-Aricha highway, killing the filmmaker instantly.

In February 2017, a Manikganj court ordered life in prison under Section 304 of the Bangladesh Penal Code for the man who was driving the bus.

Earlier, in the case of Bangladesh Beverage Industries Ltd v Rowshan Akhter and others, 2010, the High Court ordered a compensation of Tk2 crore to the family members of the victim of a road accident.

It was initially filed as a money suit in 1991, under the Fatal Accidents Act, 1885 in an ordinary civil court. But the Tareque Masud case has rekindled the hopes of road accident victims.

It is expected that victims of road accidents may step forward to see their claims being heard.

Roads of death 

Road accidents are a routine occurrence in Bangladesh highways. Bangladesh Police reports 1,489 accidents, which resulted in 1,422 deaths and 1,289 injuries in the year 2016 alone.

The prime factors behind such accidents are speeding, over-loading, over-taking, or unfit vehicles. The use of mobile phones while driving also plays a contributory role.

Most highways in the country stretch right in the middle of two villages, with markets on both the sides. Most of the casualties occur when a person crosses a highway to go to the other side.

Now that the rights of road crash victims are upheld, that day is not far when tort law would have its independent existence in our legal system

Such victims and the families of the deceased should get monetary compensation to cover the economic loss sustained by them. The compensation to such victims of road accidents caused by negligence and recklessness shall be paid from the proposed victim’s compensation fund, and the money paid shall subsequently be recovered by the government from the owners of the vehicles by starting legal processes.

What does the law say about compensation?

Section 1 of the Fatal Accidents Act, 1855 provides for compensation to the family of a person for loss occasioned to it by his death by actionable wrong.

According to this section, whenever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages.

It also mentions that every such action or suit shall be for the benefit of the wife, husband, parent, and child.

Section 128 of the Motor Vehicle Ordinance, 1983 provides for application for compensation. According to the section, an application for compensation arising out of an accident mentioned in Section 127 may be made by (a) by the person who has sustained injury or whose property has been damaged, (b) where the death has resulted from the accident, by all of or any of the legal heirs of the deceased, or (c) by any agent duly authorised by the person injured or by all or any of the legal heirs of the deceased, as the case may be.

The section also requires filing of the application within six months of the date of occurrence.

Duty of care

The prime element of negligence is establishing the duty of care.

This becomes complicated particularly in case of road accidents.

For example, questions arise on whether or not the bus driver has a responsibility towards his passengers, or can a car driver be held liable for injuries caused by his driving?

Section 104 of the Motor Vehicle Ordinace, 1983 recognises the duty of a driver in case of an accident and injury to a person. Section 304B of the Penal Code has prescribed a maximum punishment of three years imprisonment or fine or both for an offense of causing death of any person by rash or negligent driving of any vehicle, and that the offense is a bailable one.

One of the landmark English cases in establishing duty of care is Donoghue vs Stevenson. Here, Lord Atkin introduced the neighbour principle.

Its immediate importance was to impose a duty on manufacturers in respect of the production of certain types of goods.

In the case of Clark v London General Omnibus Company Limited, the plaintiff’s daughter was killed as a result of an accident with one of the defendant’s omnibuses.

At trial, the plaintiff recovered from, amongst other things, the cost of burying his unmarried daughter.

The court of appeal allowed the appeal against this head of damage both under Lord Campbell’s Act (the predecessor of the current Fatal Accidents Act) and common law.

The High Court Division in the Tareque Masud case has proven its adaptability with changing circumstances.

Since we do not have an expressly written law of tort, it will, from time to time, develop holding the hands of eminent judges through such decisions.

The National Road Safety Council (NRSC), Bangladesh Road Transport Authority (BRTA), the Accident Research Institute (ARI), and BUET are constantly trying to maintain safe roads.

Now that the rights of road crash victims are upheld, that day is not far when tort law would have its independent existence in our legal system.

Aiman R Khan is a trainee Lawyer, Dhaka Judge Court.

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