Compensation is a matter of right, not sympathy | The Daily Star
12:00 AM, February 09, 2019 / LAST MODIFIED: 03:45 PM, February 09, 2019

Compensation is a matter of right, not sympathy

On January 25, 2019, a coal laden truck flipped over and crushed a makeshift workers' shed in a Comilla brick kiln factory, killing 13 people and injuring five others. The shed was situated inside K and Co Brick Field at Narayanpur, Chauddagram and the truck came from Chittagong. The truck was in reverse gear and was driving backwards to be parked, so the coal could be unloaded. However, since one side of the truck was piled up with up to six-feet of coal, it caused the vehicle to overturn and smash the shed, where eighteen workers were sleeping at the time. The shed was merely built with a tin-roof and five-inch brick walls and was only seven to eight feet high and therefore could not withstand the impact. An inspector of Bangladesh Road Transport Authority (BRTA) mentioned that the truck was overloaded with coal which is what caused the crash.

Among the deceased, most were students who worked part time and went to university. Moreover, seven of the deceased belonged to the same family. A case has already been filed at Chouddagram Police Station against the truck driver and helper later that night by the brother of one of the victims, accusing them of negligence. The Officer in Charge (OC) mentioned that the brick kiln authorities would also be impleaded in the case if any negligence is found on their part. This case was filed under section 304A, Penal Code 1890 which deals with the offence of causing death by negligence, punishable by up to five years imprisonment or fine or both. Notably, neither the driver nor the helper could yet be arrested as they fled the scene after the accident and are yet to be located by the authorities. However, should criminal prosecution be the sole response of the law to incidents such as this? Even if the two are located and arrested, found guilty and handed the highest possible imprisonment of five years for the offence, has justice been duly served? What will happen to the injured victims who suffer severe injuries and can therefore no longer work, and to the families of the deceased who used to rely on their income to sustain themselves? Imprisoning the offenders does nothing to address the immense losses they are now faced with, if they are left wholly uncompensated.

Interestingly, a statement from the Ministry of Labour and Employment disclosed that the families of the deceased workers will receive Tk 1 lakh as “compensation” from the Bangladesh Workers Welfare Fund, while the injured workers will receive Tk 50,000 each. Additionally, the Comilla Deputy Commissioner and the brick field owner have donated Tk 10,000 and Tk 20,000 respectively, to each of the deceased victims' families as “compensation”. However, let us be clear: these ad-hoc payments arising out of individual sympathy (or public pressure) are not “compensation” but at best, merely humanitarian aid. Black's Legal Dictionary defines compensation as monetary payment “which is necessary to restore an injured party to his former position.” So clearly, a uniform amount of payment which does not factor in the victim's specific losses (for instance, loss of potential income based on the age and income of the victim) and is quite minimal in nature cannot in a legal sense be called compensation. Furthermore, compensation is a matter of right, not a product of sympathy.

There are laws in place under which the victims can get compensation as of right, such as the Motor Vehicles Ordinance 1983. Even though the recent Road Transport Act 2018 seeks to replace the 1983 Ordinance, Section 1(2) of the Act states that the Act will come into force on the date stipulated by the government through gazette notification. No such gazette notification has yet been released and therefore the 1983 Ordinance is still applicable. Under this Ordinance, the District Judge Court acts as the Motor Accidents Claims Tribunal where an application form for compensation (called CTA form) which costs Tk 20 can be submitted by the injured party. This Ordinance would allow the victims to recover compensation not only from the truck driver but from the owner of the vehicle as well, which is crucial because it will seldom be the case that a chauffeur will have sufficient wealth to pay compensation to victims of their reckless driving. For instance, it is under this law that the High Court awarded Tk 4.4 crores in damages to Catherine Masud for the road accident that killed her husband Tareque Masud and caused her an eye injury as well. Here the bulk of the award was to be paid by the vehicle owners. Additionally, if any negligence is found on part of the workers' employer, Brick Kiln & Co (as per the claims of many rights groups such as Shramik Nirapotta Forum) then the workers may also sue them for compensation under Bangladesh Labour Act 2006, but the major disadvantage here is that unlike the 1983 Ordinance where compensation amount will increase with the extent of harm sustained by the victim, awards under the 2006 Act are uniform: Tk 1.25 lakh for injury and Tk 2.5 lakh for death. To overcome this hurdle, the victims may jointly sue the employers and the truck owners under the more broadly worded Fatal Accidents Act 1855 which applies “whenever the death of a person” is “caused by a wrongful act” but unfortunately this Act would not allow claims by injured victims.

However, given the costly and protracted nature of civil litigation (especially when it comes to compensation claims), it seems a bit unrealistic to expect the families of these brick kiln workers to pursue compensation cases on their own. This is precisely where the National Legal Aid Services Authority (NLASO) should step in to fulfil its purpose of ensuring access to justice for those who are hindered by their financial hardships and socio-economic conditions. It should direct the District Legal Aid Committee (DLAC) of Comilla to file compensation cases on behalf of the victims under the 1855 Act, 1983 Ordinance or 2006 Act, as applicable. Thus if the main objective is to redress victims of negligence in the Comilla accident or any of the abundance of similar “accidents” of this kind, mere criminal prosecution or makeshift donations in the name of compensation are not enough. Compensation must be recognised and enforced as of right so victims are in fact restored to their former position in so far as monetarily possible.

Taqbir Huda is a Research Specialist at Bangladesh Legal Aid and Services Trust (BLAST).

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