HC’s compensation to Tareque Masud’s family: Fair or unfair?

Even though Bangladesh has one of the highest rates of road fatalities in the world, victims or their families hardly, if ever, sue the wrongdoers for compensation. A recent study has shown that at least 1,810 people have died due to road accidents over a period of 189 days putting the average number of deaths at an astonishingly high 10 persons per day (So Many Deaths on Roads, The Daily Star, 24 August 2017).

It is in this context that the High Court’s decision on 3 December 2017 to award Tk 4.61 crore as compensation to Tareque Masud’s family, against the bus owners, Kashed Miah, Khokon Miah and Jahangir Kabir, the bus driver Jamir Uddin and the insurance company, Reliance Insurance is a landmark judgment.

However, judging from responses to the case on the social media it is clear that not everyone agreed or welcomed the High Court’s decision. Indeed some have labelled it as a ‘rubbish judgment’ outright, which they perceive as not being based on any valid law. Others concede the legality of the order but view it as being ‘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. Firstly, that the High Court arbitrarily chose to compensate Tareque Masud’s family over the thousands of other families who have similarly lost their main breadwinners in road crashes. Secondly, that the High Court’s award of compensation to Tareque Masud’s family somehow hinders or even obstructs these other victims’ families to likewise seek compensation. Let us address each of these misconceptions in turn in order 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 the thousands of others families because they did not order the compensation by way of a suo moto rule i.e. 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 dating back to 2012 to bring this case to the High Court and then eventually 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 noteworthy that the Tk 4.61 crore compensation award from the High Court is actually less than half of what Tareque Masud’s had claimed on several headings which included financial and non-financial losses arising out of the untimely death of the famous filmmaker.

Secondly, far from obstructing or hindering them, this decision can actually work to empower the thousands of other victims of road fatalities and their families to similarly sue for compensation. It is worth mentioning here 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 golden 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 (reported in 67 Dhaka Law Reports, page 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 It that it is a ‘ground-breaking attempt to bring the long-neglected Motor Vehicles Ordinance 1983 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 and misconceived. It is imperative that we understand that this case is not solely beneficial to Tareque Masud’s family alone. Rather it is a victory for all the thousands of people who have been and will be killed and injured due to the wholly avertable 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, surely 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)