Laws to deal with road accident victim damages

Tasmiah Nuhiya Ahmed | Published: 00:00, Aug 05,2018 | Updated: 01:59, Aug 05,2018

 
 

— New Age

TWO students were killed on July 29 by a speeding bus on Dhaka’s busy Airport Road. The deceased are Abdul Karim Rajib, a second-year student of humanities at Shaheed Ramiz Uddin Cantonment School and College, and Dia Khanam Meem, a first-year science student at the same college.
At least seven others were also injured in the accident which took place at Kurmitola opposite the Radisson hotel about 12:30pm on Sunday. An Uttara-bound bus of Jabal-e-Noor Paribahan rammed into a group of students who had been waiting on the road for vehicles to return home after college. Two of them died on the spot. The bus from Mirpur hit the students right after they had crossed the flyover, witnesses said. Rapid Action Battalion personnel detained the two drivers and the driver’s assistants of the buses that were responsible for this road accident.
However, such incidents are, unfortunately, very common in Bangladesh. There is no improvement in this problem and the reason is that there are insufficient laws that serve no purpose to deal with compensation of road accident victims.
In Bangladesh, several statutory frameworks deal with the instance of wrongful death of a person — the Bangladesh Penal Code 1860, the Motor Vehicles Ordinance 1983, the Employers’ Liability (Compulsory Insurance) Act 1969, the Road Traffic Act 1988,tThe Consumer Rights Protection Act 2009 and the Fatal Accidents Act 1855. In addition, compensations can be claimed under other various statutes and regulations.
The Fatal Accident Act 1855 provides for compensation to families for loss occasioned by the death of a person caused by actionable wrong. The 1855 act gives a right to the beneficiaries as under the act, the dependants ie wife, husband, parent and child, if any, of the deceased has a statutory right to file a suit for damages against someone whose wrongful act, neglect or default has caused the death. The suit is to be filed in the name of the executor, administrator or representative of the person deceased. And in every such action, the court may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought.
The court by its judgement or decree shall direct how the recovered amount of damages shall be distributed amongst the before mentioned parties, or any of them, after deducting all costs and expenses. This act provides for two kinds of damages under two distinct heads. Firstly, under Section 1, damages are given for pecuniary loss suffered by certain members of the family of the deceased as a consequence of death. Secondly, pecuniary loss resulting to the estate of the deceased is recoverable under Section 2. The action for the former is to be brought by the representative of the deceased not for the benefit of the estate but by the trustees. For the latter, namely the loss caused to the estate, the action may be brought by quiet different persons such as creditors, etc.
Ordinarily the dependants of the deceased will also be the people interested in the assets of the deceased. In such a case, both the causes of action should be embodied in the same suit. The 1855 act does not itself has any principle for calculating the measure of such loss. There is no definite and hard and fast rule for determining the matters that should be taken into consideration for estimating damages.
However, the case laws provide certain criteria for ascertaining who is entitled to get the compensation, the quantum of compensation, etc. It is, therefore, an area that may be explored to determine compensation in road accident victims in Bangladesh to be claimed as statutory right.
Tort actions are not well recognised yet in our legal system. This is because the law of tort is not codified and Section 9 of the Code of Civil Procedure 1908 enables a civil court to try all suits of civil nature, also confer upon courts the jurisdiction to apply the law of torts as an undeniable part of principles of justice, equity, and good conscience. Hence, without reliance on statutory provisions, pressing damages as a tort claim purely on equitable ground is quite unlikely in Bangladesh although it has been introduced.
In road accident cases, given the silence of the law, usually the owner of the vehicle comes to an agreement with the victims’ family in terms of some monetary compensation. However, only a few number of tort cases have gone to the court and become successful.
The Appellate Division of the Supreme Court gave a landmark decision. The order upheld the verdict of the High Court Division to compensate the victim’s family in a case involving the death of a former news editor of the Daily Sangbad in a road accident in 1989. In this case, a truck owned by Bangladesh Beverage Industries Limited had run over the news editor and, thereafter, in 1991, the wife of the deceased filed a case before the district judge’s court of Dhaka under the Fatal Accident Act 1855, seeking Tk 3.52 crore in compensation from Bangladesh Beverage Industries.
The lower court decided in favour of the dependant of the deceased and allowed for the compensation by the company. When the decision was put before the High Court on appeal, saying that the company could not be held liable for the driver’s mistake, the High Court rejected the plea stating that the company could, indeed, be asked to pay compensation and fixed the sum of compensation. Finally, the Appellate Division of the Supreme Court disposed of an appeal filed by the BBIL challenging the verdict given by the High Court Division. In this case, the trial court considered tortuous liability on the basis of the doctrine of vicarious liability, which bases on the principle that he who does an act through another is deemed in law to have done it himself.
Another landmark decision was also given by the Supreme Court of Bangladesh in a case led by Sara Hossain, advocate at the Supreme Court and an honorary executive director of the Bangladesh Legal Aid and Services Trust, in which filmmaker Tareque Masud and journalist Ashfaque Mishukh Munier were killed.
The High Court Division gave a decision in this case on December 3, 2017 to award Tk 4.61 crore in compensation to Tareque Masud’s family, against the bus owners, the bus driver and the insurance company. Sara Hossain said no one was taking the matter seriously. Cases are only given proper treatment when the higher court takes action. She further added that standards of the compensations, accountability, and the matter of safety need to be specified by the law.
We need to introduce special provisions of law to deal with the payment of compensation for these victims as soon as possible. Under the laws of Bangladesh, unfortunately, we do not find such provisions that are efficient enough to deal with the compensation claims. While researching on this arena, I found that there is an immense need for having structured formula for calculation of compensation amount for the victims of road accidents in Bangladesh.

Tasmiah Nuhiya Ahmed is a research assistant (law) at the Bangladesh Institute of Law and International Affairs.

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