There is no change. People are still being killed, injured and crippled in road accidents. Their families are filled with sorrow, rage and helplessness, but nothing changes.
There is a lot of talk about justice and amendments of the law. A new law was even drawn up, but has not been enacted as yet. At the government’s behest, a long list of recommendations was prepared. These have not been implemented as yet.
There are demands for the punishment of the drivers and their assistants who are responsible for the roads accidents. There is much debate over whether they should be given life imprisonment or death sentences, not just a paltry three years behind bars.
We are looking for a solution in criminal cases and longer imprisonment of the drivers and owners of the vehicles. We look towards the government to implement the recommendations and the traffic police to apply the law. We hope that those who use the roads, the bus owners and drivers’ associations will all reform and become good. Maybe they will one day, but in the meantime hundreds will continue to die in road accidents. We will shed tears, write, maybe protest and point to everyone’s failures, but there is a legal solution. It may not be a complete solution, but it is relatively easier to follow this procedure. The victims will require patience, money, committed lawyers and empathic judges.
So far we have been seeking solutions through criminal law, that is, having the accused tried in court and sent to prison.
The other solution is through the administration. This entails the government approving hundreds of recommendations, improving the roads, widening the pavements, ensuring the fitness of the vehicles, making sure drivers have licences, that the pedestrians do not jaywalk, that the traffic lights function properly and that the traffic police are efficient.
Needless to say, criminal cases and administrative methods are essential, but rather than waiting interminably for years for such steps to be implemented, it is more realistic to resort to civil cases.
At times we hear lawyers lamenting that we have no laws for civil compensation. There is a law, but it is so old that we have forgotten about it. This is the Fatal Accidents Act 1885. This law is 164 years old.
It is the responsibility of the police to file criminal charges in the case of road accidents, to arrest the accused, carry out investigation, submit the investigation report to the court, collect evidence and witnesses and so on. Those seeking justice have to rely completely on the police. And if the investigating officer is transferred when the investigations are midway, everything is set back by a few months.
Once the charge sheet is submitted, the public prosecutor conducts the case and the PP is generally a supporter of the ruling party. The cases simply roll on for months. The families of the victims just have bide their time, hoping for justice.
Then again, before the verdict against the accused in a criminal case can be passed, the judge has to be sure that the accused is guilty beyond doubt. Even a little doubt obstructs the accused from being declared guilty. That is why there are very few instances where the driver or the assistant are punished in these criminal cases.
The convenience of a civil case is that the judge listens to both sides of the argument and passes the verdict according to the logic and evidence presented. In criminal cases, the accused can slip through a loophole even if there is an iota of doubt. But in civil cases, if the judge is convinced by the plaintiff’s argument, that is enough to sentence the accused.
It is the legal counsel of the plaintiff, the family of the victims, that conducts the case demanding compensation. The police, the state or the PP are not involved.
Many criminal cases drag on for years in absence of witnesses, or the cases are simply scrapped. A driver may be proven guilty and sent to jail in a criminal case, but the family of the victims receive nothing, except perhaps some mental satisfaction that justice has been done.
Civil cases often go on for years too, but the plaintiffs do not lose hope. At the end of the case the plaintiff knows he will get his land back, get his money back with due interest or receive due compensation. Mental relief is accompanied by financial compensation.
The Fatal Accidents Act, 1855 is just a two-page law that states that if anyone is killed in an accident, the judge can order the payment of any sum of compensation as he deems appropriate. The family of the deceased will receive the compensation, that is, the parents or spouse or child, etc.
If the concerned vehicle does not have fitness papers or the driver does not have a licence, the compensation will be higher. If the owner of the vehicle has to pay a Tk 5 million fine, he will never allow a driver without or licence or a vehicle without fitness take to the road.
Our Supreme Court has applied this law in this certain cases, in 1969 and in 1972. The Appellate Division also referred to this law in 2016 in the case of Bangladesh Beverage vs. Raushan Akhter. Ironically, however, though the court 30 years ago had ordered around Tk 17.5 million to be paid as compensation to Raushan Akhter, the wife of Sangbad’s news editor Mozammel Hossain, the amount is yet to be paid.
Before going into implementing hundreds of recommendations, the government can simply make a minor amendment to the Court Fee Act, 1870 to smooth the way for civil cases. According to this act, the plaintiff has to submit 2.5 percent of the demanded compensation to the court as court fees. The highest court fee is Tk 50,000. If a minor amendment is made in this act, the court fee can be brought down to 0.5 percent, the highest fee being Tk 10,000, making it easier for the victim’s family to take up the case.
First of all, of course, the lawyers have to get used to using this old law. They must also understand how to determine the compensation amount. Also, rather than seeing the case as just another means to make money, the lawyers can also take this as a public service to contribute towards preventing such accidents. If the NGO’s involved in legal aid and the Bar Association take initiative regarding legal procedures for compensation, this will yield quick results.
It makes no difference to the owner of the bus or truck if the driver is sent to jail for three or five years. He can simply hire a new driver. But if the owner has to pay a Tk 2 million or Tk 5 million fine, then there will be no vehicle without fitness or driver without licence on the streets. This could be an easy solution.
* Dr Shahdeen Malik is a lawyer of the Bangladesh Supreme Court and teaches law at the University of Asia Pacific. This piece appeared in the print edition of Prothom Alo and has been rewritten in English by Ayesha Kabir