On 3 December 2017, the High Court Division (HCD) awarded Tareque Masud's family Tk 4.6 crores in damages against the bus owners, the bus driver and one insurance company. The case was originally filed by Catherine Masud before the Motor Accidents Claims Tribunal, Manikganj, under section 128 of the Motor Vehicles Ordinance 1983 (MVO) claiming damages for herself, her minor son and Tareque Masud's mother. The claimants, who were represented by a team led by Dr. Kamal Hossain, then made an application under Article 110 of the Constitution which allows cases to be transferred from subordinate courts to the HCD under certain circumstances. Recognising the 'general public importance' and potential to set a significant legal precedent, Justice Naima Haider on behalf of the HCD accepted the transfer petition in 2014 (67 DLR 527), after which the case came before the bench presided by Justice Zinat Ara for hearing in March 2016.
This case is immensely significant not only given the rarity of tort litigation in Bangladesh but also because it sets a precedent for imposing liability on a group of people who have long enjoyed absolute impunity. The MVO was enacted almost three and a half decades ago to provide a speedy system through which victims of motor vehicle accidents would be able to sue not only the negligent drivers but also the vehicle owners (e.g. bus owners who employ unqualified drivers to run unfit buses in the first place) and their insurers. Even though Bangladesh has one of the highest rates of road fatalities in the world, victims or their families hardly, if ever, sue for compensation, be it under the MVO or other applicable laws.
In a press statement, Catherine Masud, stated that "this case is a 'ground-breaking attempt' to bring the long-neglected MVO (and tort law in general) to public notice so that in the future, road crash victims and their families may have a means to be legally compensated for their losses."
Earlier this year, the driver of the bus, Jamir, was already convicted under section 304 of the Penal Code by the Manikganj Additional District and Sessions Court for 'reckless driving and causing death due to negligence'. As such this case also clearly illustrates an oft-forgotten aspect of our legal system that victims of negligence need not choose between putting the wrongdoer behind bars and getting compensation from them since they can pursue an action in both criminal law and civil (tort) law concurrently. When the sole bread earner of a family is killed in a road accident, imprisoning the negligent driver may soothe the sentiments of the deceased's family members but it leaves unaddressed the economic and personal losses they face as a result of the untimely death. This is where tort law plays a pivotal role in empowering family members of the deceased to recover compensation for both pecuniary (loss of dependency and medical expenses etc.) and non-pecuniary losses (loss of affection, care and nursing by the parents, spouse and children). For example, in the instant case Tareque Masud’s family members were paid a total of Tk 4.61 crores on the following headings: loss of dependency, loss of affection, care and nursing, medical expenses and damage to property.
Crucially, the insurance company Reliance Insurancewas liable to only pay Tk 80,000, of which only Tk 20,000 is for loss of life, Tk 50,000 for damage to property and Tk 10,000 for serious injury. It is appalling that insurance policy under our Insurance Act, 2010 and Insurance Rules, 1958 limits the insurance company's third party risk to such abysmal amounts and also happen to value the loss of life two and a half times less than damage to property. As such, while this case is indeed a milestone for tort law and vicarious liability of bus owners in Bangladesh, it is important to remember that the insurance company got away largely unscathed.
All things considered, this case is a victory not only for Tareque Masud's family but for the long unheard victims of reckless driving who will hopefully feel empowered enough now to sue responsible parties for compensation they may rightfully deserve.
The writer is Research Officer at Bangladesh Institute of Law and International Affairs (BILIA).