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« on: March 20, 2014, 02:12:05 PM »
Each year thousands of people get killed or injured in road crashes in Bangladesh. Victims or their families seldom get compensated for their losses. The Star finds out why and what legal options they may pursue in this context.
On August 13, 2011, Tareque Masud and Mishuk Munier, award winning film personalities, were killed instantaneously along with their crew members, when a bus ran into their car on the Dhaka-Aricha highway. Every year thousands of people get killed in road crashes in Bangladesh, usually called 'accidents' here. What often happens after a crash is bizarre: the mob beats the driver if they can catch him. In some cases, the police arrest him. If someone dies or gets severely injured, they may get some kind of immediate payout from the owner of the vehicle or the driver, but nothing close to their loss. Sounds bad? Now get this: no one sues them for damages or loss. Because the idea that victims of a car crash may have the right to claim compensation from the party at fault is mostly unused in Bangladesh, although the law has a provision for it. If they get anything, it is from kind-hearted individuals or organisations.
Now all that may change.
On February 13, 2012, two cases were filed before the Motor Accidents Claims Tribunal, Manikganj by the families of Tareque Masud and Mishuk Munier as claimants under Section 128 of the Motor Vehicle Ordinance 1983. On October 1, 2013 the applications under Article 110 of the Constitution, for transfer of both cases to the High Court Division were filed. Considering its importance and potential to set a precedent in future, the High Court issued orders to move the cases to the High Court. Earlier, a criminal case under Section 304 of the Penal Code for reckless driving was filed in this regard and is still continuing.
According to a WHO estimate, the actual number of deaths in road crashes in Bangladesh may be around 20,000, one of the highest in the world although the numbers released by various authorities in the country are much lower.The fatality rate for Bangladesh is around 70, which is 35 times higher than that in the United States (2.0) and 50 times higher than that in the United Kingdom (1.4). The fatality index (for Bangladesh) is around 60 percent, the highest among developing countries. Unless specific measures are taken, with the number of motor vehicles growing at 8 percent per annum, there is a serious risk that road casualties will increase.
“The term 'road accident' is not used in other countries anymore,” says Ilias Kanchan. “They call it 'road crash.' Because when you call it an 'accident', you are under the illusion that it is sort of an 'act of God' that happened beyond our control. The word "accident" absolves the responsible parties of any responsibility. But when you call it a 'crash', you know that mistakes were committed. And if we can avoid those mistakes, we can prevent crashes from happening.” Kanchan is a former film star turned road safety campaigner who lost his wife in a road crash in 1993. “The first thing the government needs to do is to disclose the real numbers. If they are hiding the real numbers from the public then how can we trust them to be sincere in its attempts to reduce the numbers?”
So the 'how many' is not known, but what about the 'why'? What are the reasons behind all these crashes?
“We have a tendency to always blame the driver for over speeding and reckless driving,” says Shahnewaz Hasanat-E-Rabbi, a researcher, at the ARI (Accident Research Institute), BUET. “But according to our own research, there are other factors such as the condition of the road, carelessness of pedestrians and condition of the vehicle,” he adds. Rabbi's colleague at the ARI, Kazi Md Shifun Newaz, Assistant Professor, says that there needs to be well trained, specialised teams in every zone or police station to investigate the real reasons behind the crashes. “Police personnel who fill out the Accident Report Form often do not cross factors other than the two mentioned by my colleague. Journalists too can play an important role here by producing reports that are more investigative in nature and objective rather than emotional.”
So here we are with such an astronomically high number of deaths and injuries without knowing 'exactly how many' and 'why'. You don't have to be an expert to know it's a bad start for tackling any problem.
“A structure for proper investigation of the crashes does not exist,” says Mridul Chowdhury, executive producer of “Death Trap”, a documentary film on road crashes in Bangladesh. “The problem is multi-layered and there seems to be no easy solution to it. But finding the real reasons is a start. Always blaming the driver is nothing but sweeping the problem under the carpet.”
At this stage, you are perhaps wondering what has stopped victims from claiming compensation. The reasons, again, are multi-dimensional and endlessly complex.
First, in order to get compensation, a victim has to take the initiative to file a compensation case. People are not aware that they can. Even the police may rarely know about the provision for filing civil cases. “And the police usually discourage victims from filing a criminal case against the party at fault,” says Kanchan. “There are two reasons behind it. If cases are not filed, then the police can underreport the number of accidents. Second, the police take the lead in mediating between the owner and the victim or the victim's family. But often the negotiated amount as compensation does not reach the victim.”
Blaming the police is a popular thing to do in Bangladesh but in the line of duty they are sometimes compelled to do things that do not necessarily fit their job description. “Although it is not the job of the police to mediate but for practical considerations people want it,” says Mohammad Nurul Huda, ex-Inspector General of Police. “A lot of victims need help immediately for financial reasons. They do not have the awareness to pursue legal options nor can they afford to wait. They expect the police to get involved and try to settle the matter without much delay.”
The question that comes to your mind at this stage is: Where do the insurance companies stand in all this?
“If a bus/truck owner has first party insurance, he should be covered for damages and loss of property or life,” says Osman Ali. “But if someone dies or gets injured, getting money from the insurance company is time consuming and cumbersome. So most owners now carry only third party insurance just to comply with the law.” Ali is general secretary, Bangladesh Sarak Paribahan Sramik Federation, an apex body of road transport workers' unions.
“I am not sure of what third party insurance covers,” says Ilias Kanchan. “It's just money in the pocket of insurance company owners. But my experience with first party insurance isn't very pleasant either. When I had some damages to my car due to a crash, I got it fixed and the bill ran about Tk 50,000. The insurance company offered only Tk 25,000. I was shocked. They told me that if I wanted Tk 50,000, I should have made a claim for Tk 100,000. In other words, they told me to lie. Since then I have stopped carrying first party insurance on my car. I carry only third party insurance now.”
Sheikh Kabir Hossain, chairman, Bangladesh Insurance Association says that owners only buy the third party insurance policy to save money. “If the risks are high, then the first party insurance premium is high.” In 2011 the government established the Insurance Development and Regulatory Authority to oversee the insurance industry. Md Fazlul Karim, a member of the regulatory body says, “If someone makes a claim through first party insurance and is denied the claim, they can make a formal complaint based on which we ask the insurance company to give us an explanation within 7 days. Then we tell the insured party what the company has told us. If the former is not satisfied with their explanation, we call a tri-party (the insurer, the insured and us) hearing and listen to both parties. If we find out that the insurance company owes the insured party, we give the former a written order as to pay the latter within a specific timeframe, interest included.” At the IDRA many positions are still vacant which, Fazlul Karim believes, will be filled soon.
Although civil lawsuits are rare in road crashes in Bangladesh, the Star has found at least two examples in the past. One case was filed in 2006 before the Motor Accident Claims Tribunal, Dhaka but the parties reached a settlement and the case was disposed off accordingly. If the parties involved can reach a settlement among themselves it may save everyone time, energy and money that any legal procedure anywhere in the world may require. But filing cases in court may help establish a legal precedent that is important and necessary in this context.
“Another case (Bangladesh Beverage v Rowshan Akhtar) was initiated as Money Suit No 3 of 1991 which was filed by the family members of a deceased journalist who was killed by a motor vehicle near Press Club before the Joint District Judge, 3rd Court, Dhaka,” says Motahar Hossain, Advocate, Supreme Court. “It was filed under the Fatal Accident Act, 1885 in ordinary civil jurisdiction. The Court awarded damage of Tk 3,52,97,000 however the amount was reduced to Tk2,01,47,008 by the High Court Division on appeal. The matter is now pending before the Appellate Division of the Supreme Court.” Motahar Hossain, Sara Hossain and Charles Quiah, advocates, Supreme Court are assisting Dr Kamal Hossain, chief counsel in the Supreme Court in the civil cases filed by the families of Tareque Masud and Mishuk Munier.
Dr Kamal Hossain, lawyer and statesman, says that this case raises questions regarding interpretation of the common law of tort (civil wrong), which will be precedent setting in our legal system. “Huge numbers of lives are lost and families destroyed through road killings. Although it is 30 years since our Motor Vehicle Ordinance 1983, few are aware of it, there are no standards set for determining compensation, few cases are filed, and those responsible continue to get away with total impunity.”
Hopefully these cases will lead to greater accountability established for vehicle/transport company owners and insurers, who will in turn, out of their own self interest, be motivated to support and institute measures for improvement of road safety, i.e. proper driver training, more rigorous enforcement of vehicle fitness standards, requiring first party insurance for all public transport vehicles and so on.
On February 15, seven children were killed and 50 others injured as a picnic bus carrying the school children fell into a roadside pond in Jessore's Chougacha Upazila after the driver “lost control” of the vehicle, according to news reports. How much were their lives worth? Can anyone tell? Will they be back if their families file cases? “We are not doing it for money. We won't be able to bring back Tareque and Mishuk,” says Catherine Masud. “But at least for those countless thousands of victims and their families, we hope to establish some kind of precedent so that in future there is some hope of accountability and legal recourse.”
Source: The Daily Star