To compensate victims of rail accidents | The Daily Star
12:00 AM, July 16, 2019 / LAST MODIFIED: 12:00 AM, July 16, 2019

Law Letter

To compensate victims of rail accidents

On June 23, we witnessed a horrific train accident at Moulvibazar which claimed four lives and left about a hundred injured. But who should be liable for such an omission? All rail activities in Bangladesh are controlled by the Bangladesh Railway, an organ of the government. If culpable negligence, meaning failure to perform an act of duty occurs, the Bangladesh Railway will be liable. Regardless of whether the accident was caused because of faulty rail-lines, or overload, or defects in the train, the Bangladesh Railway will have to be held guilty of negligence. Train wreck incidents like this not only breach the faith taxpayers put on the authority and the contract with the passengers who bought tickets for the service, they also arguably violate the victims’ right to life, a fundamental right protected under article 31 and 32 of the Constitution of Bangladesh.

The Bangladesh Railway Act, 1890 was amended in 1943 and the provision for compensation for injury or loss of life caused by railway accidents was included in section 82A, with the cap for the compensation being thousand taka. The Honourable Minister of Railways declared that the families of the deceased victims shall receive one lakh taka and the injured victims will receive only ten thousand taka. The value of ten thousand taka is significantly lower now, rendering the provision remarkably less efficient in today’s context. This is not nearly sufficient for covering medical bills, let alone compensating other costs. And additional compensation (such as exemplary damages or punitive damages) must be paid in this case.

Compensation in public law is different from that in private law. While compensation in civil matters is awarded to cover the damages suffered by the victim, it stands for something way more important in public law. In public law, compensation is paid to make monetary amends to the wrong done by the State or any organ of the State, fix the liability for public wrongdoing when the State has failed to protect the fundamental rights of a citizen, and to assure the citizen that they live under a legal system which aims to preserve their interest and rights (See for reference, Nilabati Behera v State of Orissa (1993), decided by the Supreme Court of India). The Privy Council of the United Kingdom in AG of Trinidad v Ramanoop (2005), held that vindicatory damages in public law should be awarded for reflecting public outrage because of the breach of a constitutional right, to uphold the gravity of a constitutional right and to prevent further breach of a constitutional right. It also stated in Merson v Cartwright and the Attorney General of The Bahamas (2005) that ‘[t]he purpose of a vindicatory award is not a punitive purpose. It is not to teach the executive not to misbehave.’

As pieces of evidence of negligent conduct by Bangladesh Railway in maintaining the rail-lines and maintaining order in trains have time and time again surfaced in both popular media and social media, an example should be made of this dreadful accident so that the State organs and agents show greater care for the fundamental rights of the people of Bangladesh.

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