Catherine Masud vs Kashed Mia and others, 67 DLR 527

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Introduction

Tort is an interesting branch of law which provides compensation for damage or injury. Unfortunately, the application of tort law remained undiscovered in Bangladesh. However the implementation of tort is gradually increasing in Bangladesh. This landmark case was the first one ever filed under Section 128 of the Motor Vehicle Ordinance, 1983.

Brief overview

On the Dhaka Aricha Highway, collusion took place between a microbus and a bus coming from the opposite direction and five passengers of the microbus suffered instant death. The court was convinced that the bus driver was driving the bus recklessly through the wrong lane and convicted the owner under vicarious liability because the owner knew the absence of a fitness certificate of the bus and valid driving license of the driver. The High Court awarded compensation to Tareque Masud’s family against the bus owners, the bus driver and the insurance company. The case is known as “A landmark compensation suit”[1]

Synopsis of the fact

Deceased victim Abu Tareque Masud was a renowned film-maker. Catherine and Tarique were the owners of a production house named Audiovision. He intended to make a new film titled “Kagojer Phool.” On 13.08.2011, he started from Dhaka along with nine others for visiting a shooting site at Saljana village of Shibalaya Upazila under Manikganj district by a microbus owned by Catherine and Tareque. On their way back to Dhaka the Microbus arrived at a place named “Joka” on the Dhaka Aricha Highway. At that time, a passenger bus “Chuadanga Deluxe Paribahan” was coming from the opposite direction at a high speed which was carrying about fifty passengers from Dhaka to Chuadanga.

The Bus driver Md. Jamir Uddin in order to overtake a smaller bus, at a curving point of the road, suddenly took a sharp turn and continued to drive the Bus through the wrong lane and caused head on collision with the Microbus. The result of the collision was disastrous. Five persons died instantly. Out of the surviving passengers, four were injured and they were initially taken to Manikganj Sadar Hospital. Subsequently, they were sent to Dhaka and admitted into Square Hospital.

The case was filed by Catherine Masud before the Motor Accidents Claims Tribunal, Manikganj, under Section 128 of the Motor Vehicles Ordinance, 1983 (MVO) claiming damages for herself, her minor son and Tareque Masud’s mother[2] and alleging that the bus driver Jamir was driving the Bus recklessly and negligently at a high speed leading to a head-on collision with the Microbus resulting spot dead of the bus driver and four passenger of Microbus and causing injuries to some other passengers of the Microbus.

Issue

Whether the case is maintainable or not?
Whether the case is barred by limitation or not?
Whether the MV Ordinance is to be treated a continuous law as an Act made by the Parliament from the date of its inception or not?
Whether Reliance, as the insurer, has any liability to pay compensation or not?

Arguments on behalf of the Claimant

Mr. Alam contends that the whole purpose of Ordinance No. 2 of 2013 as well as of the Validation Act was to keep the MV Ordinance and the other Ordinances promulgated during the period from 24.03.1982 to 11.11.1986 in continuous force and also to protect and preserve all actions taken under the aforesaid Ordinances, that were declared void by the 7th Amendment Judgment passed by the Appellate Division. Mr. Alam further contends that the intention of the legislature was to give validation to the MV Ordinance, 1983 and other Ordinances from the date of their respective inception. Therefore, the MV Ordinance is to be treated a continuous law as an Act made by the Parliament from the date of its inception.

Arguments on behalf of the Respondent

Mr. Ehsan A. Siddiq, the learned Advocate of the respondent contended that the accident took place on 13.08.2011, the petition was filed in the Tribunal on 13.02.2012 and the CTA Form was submitted in this Court on 13.03.2016 i. e. after more than four years from the dates of accident and filing of the original claim petition.

It was also contended on behalf of the respondent that, Reliance has a limited liability relating to the claim of third party like the petitioners of this case, simply because the premium paid by the bus owner as the insured did not cover the entire risk relating to third parties in case of an accident. Mr. Siddiq further contends that Reliance has already paid to the Bus owner’s sufficient compensation for the damage of the Bus. He adds that the petitioners or any other legal heirs of the deceased persons or the injured victims never approached Reliance for payment of compensation and for that reason, Reliance has not paid any compensation to the claimants, as third-party claimant.

Judgment

On 03 December 2017, a judgment was delivered by a Division Bench of the High Court Division comprising their Lordships Ms Justice Zinat Ara and Mr Justice Kazi Md Ejarul Haque Akondo, whereby an amount of taka 4,61,75,452/- was awarded in favour of Ms Catherine Masud and two others who had been a victim of a road traffic accident in which five people died instantly including famous film director Tareque Masud and renowned photo journalist Mishuk Munir.

Reasoning for Decision

The Preamble read with the text of the Validation Act as a whole, particularly, sections 1, 4 and the 4th Schedule of the Act lead us to conclude that, by virtue of this Act, the MV Ordinance has been operating since its inception in 1982 without any disruption. It follows that, on the date of filing of the claim application on 13.02.2012 in the Tribunal, the MV Ordinance was in operation. So, the objection raised by the learned Advocates for the opposite parties on the first aspect of maintainability of the case is not tenable.[3]

The accident, according to the claimants, resulted in the death of the head of their family, Tareque and also of four other persons along with injuries to Catherine and co-passengers. Despite such disaster to the family the claimants filed the claim petition within the statutory period of six months. Had they filed it after six months, the disaster caused to them would be a sufficient reason justifying the delay.[4]
The claim application contains all the relevant facts of the accident including the date, time and description of the accident, the particulars of the bus, the claims along with the reasons and persons responsible to meet the claims.[5]
The Bus-driver was driving the bus recklessly at a high speed through a wrong lane. He is directly responsible for the accident causing the death of Tareque and four others and injuries to some others including Catherine.

Assessment of compensation in tortuous claims

In the case Tareque Masud’s family members were paid a total of Tk 4.61 crores on the following headings: loss of dependency, loss of affection, care and nursing, medical expenses and damage to property. In calculating the deceased’s professional prospect, the Division thoughtfully considered the income tax returns of the deceased victim.[6] While calculating the damages, the retirement age of the deceased victim was considered. While quantifying the compensation on account of loss of love and affection, the Court laid down the basic criteria to be the relationship between the victim and the claimants.[7] Respecting medical expenses, medical reports and certificates are valuable considerations and the assessment would have to be based on those documentary evidence along with the oral evidence of experts. The High Court Division recognises funeral expenses of the victim and damage to property.

Significance of the case

The law of tort has been highlighted in the landmark case of Catherine Masud vs Kashed Mia and other[8]under section 128 of Motor Vehicle Ordinance, 1983which can be considered to be the starting point for the application of tort law in Bangladeshi Court and praiseworthy judgment for tort law enthusiasts. This case is immensely significant not only given the rarity of tort litigation in Bangladesh but also because it sets a precedent for imposing liability on a group of people who have long enjoyed absolute impunity.[9] As such this case also clearly illustrates a forgotten aspect of our legal system that victims of negligence need not choose between putting the wrongdoer behind bars and getting compensation from them since they can pursue an action in both criminal law and civil (tort) law concurrently.[10]While applying the guidelines of the Apex Court, the judgment guides us as to the test to be applied in tortuous claims which the lawyers in practice can very well use as reference in their cases.[11]

Conclusion

It is known that ‘If there is a law there must be a remedy’. Every violation of legal rights will be given adequate remedies under proper laws. Here the bus drivers and owners were enjoying the absolute immunity in regard of any road accident, but this case finally penalizes the offenders. This case is not solely beneficial to Tareque Masud’s family rather, it is a victory for victim of injured or killed due to the wholly avoidable negligence of bus drivers and owners.[12]