'Transport owners, insurers need to be held liable for a lasting change'
On the occasion of the National Road Safety Day today, noted filmmaker Catherine Masud talks to Nahela Nowshin of The Daily Star about her own journey of navigating the justice system, what the recent student-led road safety movement has achieved, and the shortcomings of the recently passed Road Transport Act 2018.
In December 2017, the High Court delivered a landmark verdict by ordering the bus owners, driver and insurer to pay compensation for the fatal road accident in 2011 that had led to the death of your husband filmmaker Tareque Masud, Mishuk Munier and three others. What was your experience in the long struggle for justice?
As is the case with so many legal battles in this country, our struggle for justice in the compensation case against the bus driver, bus companies and insurers who were directly and indirectly responsible for the crash was a long and difficult one. We first filed the case in February 2012, knowing full well that it could be years before there was any resolution. But I was convinced that it was an important legal battle because of the precedent it could set given the high-profile nature of the case. In parallel, the criminal trial against the bus driver was also going on at the district court in Manikganj, and it was very stressful to pursue both cases at once.
Testifying in court for me was like having to relive the events of August 13, 2011 all over again. But we had an excellent team of lawyers in both the criminal and the civil cases, and I am particularly grateful to our legal team led by Dr Kamal Hossain, Sara Hossain, and Ramzan Ali Sikder who handled the High Court case, and also to Khan Khalid Adnan who supported us in the criminal case. Because there was so little precedent, the case required a tremendous amount of research and preparation, but now that the groundwork has been laid, hopefully it will prove useful to others in future.
When the verdict was handed down in December 2017, we were tremendously relieved that it had gone in our favour. However, we were disappointed that the insurance company was let off with so little liability. We have appealed the case on this ground, and the opposite side has also appealed the High Court judgment, so we are still awaiting the final decision on the case to be handed down from the Appellate Division.
The unique student movement we saw this year propelled the issue of road safety into the limelight. Do you think there are any visible effects of these student protests on our roads today?
In terms of the situation on the roads, things have changed very little because there remain fundamental structural issues in the transport sector that have not been resolved. However, I think the change has occurred in the minds of the people, particularly young people who provided a brave example to the country of what might be possible. The memory of what these young people achieved in those few short days cannot be erased, and the issues that they brought to public attention have also not gone away.
The much-anticipated Road Transport Act 2018 was passed in Parliament in September. Critics have observed that in the new Act, the right to sue for compensation (which was included in the Motor Vehicles Ordinance) has been replaced by the right to apply for compensation from a Financial Aid Fund. What are your thoughts on this?
While the government is to be commended for this attempt to revise some of the outdated aspects of the earlier road transport legislation, with respect to the issue of compensation, the 2018 Act actually represents a step backward. The Motor Vehicle Ordinance 1983, under which we filed our High Court case, contained a provision for suing for compensation from not only drivers but also the transport company owners and insurers. This provision for compensation on the basis of vicarious liability is a standard one in many countries around the world, and is a fundamental necessity for ensuring accountability of those at the apex of the transport sector who are ultimately responsible for the negligence and misconduct of the vehicles they own or insure and the employees that drive them. Only when transport owners and insurers are made financially liable will lasting positive change come to this sector, as they will be motivated out of self-interest to make sure that vehicles meet safety standards, drivers are properly trained, licensed and paid, and traffic rules are enforced and obeyed.
But the 2018 Act removes the right of the victims of road crashes to sue for compensation from transport owners and insurers. Possibly it is the powerful lobby groups for these interests who ensured that this provision was dropped from the new Act, out of fear that the precedent set by our case would lead to a flood of similar cases.
In place of this provision, which should be a fundamental right, the new Act provides for a mechanism of monetary assistance through a vaguely defined "Financial Aid Fund", whose name implies charitable support to victims rather than true compensation for their losses and suffering. Although such a Fund may play an important role in providing more immediate, interim relief to victims of road crashes and their families, it can by no means replace a mechanism of legal compensation, but rather can play an important supplementary role. So with the Road Transport Act of 2018, the owners and insurers have been let off the hook, and they can proceed to operate with impunity as many thousands of lives continue to be lost every year.