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A victory for all of us

  • Published at 12:14 pm December 7th, 2017
  • Last updated at 09:40 am December 8th, 2017
A victory for all of us
On Sunday, December 3, the High Court awarded Tareque Masud’s family Tk4.61 crore in damages against the bus owners Kashed Miah, Khokon Miah, and Jahangir Kabir, the bus driver Jamir Uddin, and the insurance company, Reliance Insurance. Although this is undeniably a landmark judgment -- given the rarity of tort litigation and suing for compensation in our country -- it was not welcomed by everyone, based on responses to relevant news reports on social media. Indeed, some have called it a “rubbish judgment” outright, which they perceive is not based on any existing law. Others appreciate the legality of the order but see it as “unfair” because they believe there are more needy victims of similar road accidents (such as those from poor families) who are more deserving of a compensation order from the High Court than a “rich” and “upper class” family as that of Tareque Masud. Their critique is rooted in two fundamental misconceptions: First, that the High Court chose to compensate Tareque Masud’s family over the thousands of other families who have similarly lost their main breadwinner in a road crash; and second, that the High Court’s award of compensation to Tareque Masud’s family somehow hinders or obstructs these other victims’ families to likewise seek compensation. Let us address each of these misconceptions in turn, to show just how erroneous they are. Firstly, the High Court did not, in any way, prioritise the need to compensate Tareque Masud’s family over thousands of others families as it did not order the compensation by way of a suo moto rule, ie, the High Court was not “acting on its own motion.” Rather, it is Tareque Masud’s family, namely his wife Catherine Masud and her legal representatives -- a team led by Dr Kamal Hossain -- who had to fight an uphill battle from 2012 to bring this case to the High Court and then finally secure an award of compensation. This is because their claim was filed under a long-neglected and seldom-used provision of the law, namely Section 128 of the Motor Vehicles Ordinance 1983, which allows victims of motor vehicle accidents to sue not only the negligent driver, but also the vehicle owners and insurers. Owing to the lack of litigation and judicial precedent pertaining to this particular provision, they faced many procedural hurdles when filing the case, and there was very little case law they could rely on when presenting their case.
It is a victory because it finally penalises a certain class of individuals who have long enjoyed absolute impunity
It should be noted that the Tk4.61 crore compensation award is actually less than half of what Tareque Masud’s family had actually claimed under several headings, which include financial and non-financial losses arising out of the untimely death of the famous film-maker. Secondly, far from undermining them, this decision will actually work to empower the thousands of other victims of road fatalities and their families to similarly sue for compensation. It is important to note that the case was originally filed before the Motor Accidents Claims Tribunal, Manikganj, as per the procedural requirements of the 1983 Ordinance. Since the claimants and their counsels believed that this case would be a good opportunity to set a crucial legal precedent which will be of wider benefit to the public, they made an application under Article 110 of the Constitution, which allows cases to be transferred from subordinate courts to the High Court Division under such circumstances. Recognising the “general public importance” and potential to set a significant legal precedent, Justice Naima Haider of the High Court accepted the transfer petition in 2014 (67 DLR 527), after which the case came before the bench presided by Justice Zinat Ara for trial in March 2016. In fact, in a 2013 press statement after filing for the transfer, Catherine Masud clearly stated that “this case is about the thousands of people who have been maimed and killed in road accidents and the thousands who will be in future,” and that it is a “ground-breaking attempt to bring the long-neglected MVO 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.” Bearing the above clarifications in mind, the criticisms of those who opposed the decision appear to be wholly uninformed. It is imperative that we understand that this case is not solely beneficial to Tareque Masud’s family. Rather, it is a victory for every one of us for being in constant danger of being injured or killed due to the wholly avoidable negligence of our bus drivers and owners. It is a victory because it finally penalises a certain class of individuals who have long enjoyed absolute impunity: The very bus owners who employ unqualified drivers to run unfit buses and directly incentivise rash driving by paying these drivers by the number of trips they can make, rather than on a weekly or monthly basis. Therefore, given how significant this case is in the fight towards making Bangladesh a safer and better place, we should be hailing the decision, not rebuking it. Taqbir Huda is a Research Officer at Bangladesh Institute of Law and International Affairs (BILIA) and volunteers at Bangladesh Society for the Enforcement of Human Rights (BSHER- Manabadhikar).
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