Tareq Masud Case: Tort Law surfacing in Bangladesh

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 developed through ‘forms of action’ and Writs which were brought to the courts. Much 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 neighbors, claims regarding compensation for negligence are unfamiliar in Bangladesh. Therefore, most compensation reliefs go unsought. Victims of road accidents remain unaware of their legal rights. But with the rise of unfavorable events, the law is adapting itself to make room for claims regarding compensation for negligence. This leads to one question, “could this be the much needed evolution of our legal system?”

On 3rd December 2017, High Court (HC) ordered the concerned authorities to pay Tk 4.61 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 Tk 30 lakh, the company, which insured the bus, has to give Tk 80,000 and owners of the vehicle has to give the rest of the money in three months after receiving the full judgment of the HC.[1]

The Bangladeshi filmmaker along with his companions was killed in a road crash in 2011. The microbus 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 has ordered life in prison under S.304 of Bangladesh Penal Code for the man who was driving the bus [2]

Earlier, in the case of Bangladesh Beverage Industries Ltd. Vs. Rowshan Akhter and others, 2010, 39 CLC (HCD), the High Court ordered a compensation of Tk 20 Million 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.[3] This case technically initiated the application of tort law in the courts of Bangladesh. But considering the recent rise in accidents, the Tareque Masud case is expected to rekindle the hopes of road accident victims. They would now have the confidence to come forward to see their claims being heard.

Road Accidents in Bangladesh

Road Accidents are a routine occurrence in Bangladeshi highways. Bangladesh Police reports 1489 accidents which resulted in 1422 deaths and 1289 injuries in the year 2016 alone.[4]  In the Statistical Yearbook 2000 of the Bangladesh Bureau of statistics (BBS), the total number of the accidents took place during 1987 to 2000 is 1521 in 1987 to 3419 in 2000.[5]

The prime factors behind such accidents are over speeding, overloading, overtaking 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.

Such victims and the family of the deceased victims 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 of the drivers shall be paid from the proposed victim’s compensation fund and the money so paid shall subsequently be recovered by the Government from the owners of the vehicles by starting legal process.[6]

What does the law say about compensation?

S.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.

S.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 s.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 authorized 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 6 months of the date of occurrence.

Principle of 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, question arises whether the bus driver has a responsibility towards his passengers? Or can a car driver be held liable for injury caused by his driving? S. 104 of the Motor Vehicle Ordinace 1983 recognizes the duty of a driver in case of an accident and injury to a person. S.304B of the Penal Code has prescribed a maximum punishment of three years imprisonment or fine or both for an offence of causing death of any person by rash or negligent driving of any vehicle and that the offence is a bailable one. One of the landmark English cases in establishing duty of care is Donoghue v Stevenson. Here, Lord Atkin introduced the neighbor principle. Its immediate importance was to impose a duty on manufacturers in respect of the production of certain types of goods.[7]

In the case of Clark v London General Omnibus Company Limited [1906] 2 KB 648, 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 at common law. [8]

 

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), the Bangladesh Road Transport Authority (BRTA) or the Accident Research Institute (ARI), 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.

 

[1] Star Online Report , ‘Compensate Tk 4.61cr to Tareque Masud’s family, HC tells authorities’, The Daily Star [published on 3rd December 2017, available on http://www.thedailystar.net/country/compensate-taka-4cr-to-tareque-masuds-family-bangladesh-high-court-tells-authorities-1499533%5D[2] Bdnews24.com, ‘Bus driver gets life in prison in case over deaths of Tareque Masud, Mishuk Munier’ [published on 22nd Feb ’17, available on https://bdnews24.com/bangladesh/2017/02/22/bus-driver-gets-life-in-prison-in-case-over-deaths-of-tareque-masud-mishuk-munier%5D
[3] Amitava Kar (2014), ‘ Putting a price on the priceless’, The Daily Star [available on http://www.thedailystar.net/putting-a-price-on-the-priceless-15230%5D
[4] BRTA Road Accident and casualties Statistics (Years 2009-2016), [available on http://www.brta.gov.bd/newsite/en/statistics-of-accident-casualties/%5D

[5] Bangladesh Bureau of Statistics. (2002). Statistical yearbook of Bangladesh 2000 (21st ed.). Dhaka: Bangladesh Bureau of Statistics.

[6] Law Commission- Bangladesh, ‘Final Report on a proposed law relating to payment of compensation and other reliefs to the crime victims’ [published on 15.02.2017, available on http://www.lawcommissionbangladesh.org/reports/75.pdf%5D

[7] Lunney M, Oliphant K (2010), ‘TORT LAW- Text and Materials’, 5th Edition, OUP

[8] Lunney M, Oliphant K (2010), ‘TORT LAW- Text and Materials’, 5th Edition, OUP

2 thoughts on “Tareq Masud Case: Tort Law surfacing in Bangladesh

    • Hello Alfred,
      Thanks for your time. The article is mainly based on few news published on authoritative dailies (which you would find on the reference section)

      Like

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s