IN THE SUPREME COURT OF BANGLADESH        HIGH COURT DIVISION

      (Special Statutory Jurisdiction)

TRANSFERRED MISC. CASE NO. 01 OF 2016

In the matter of:

An application for compensation under section 128 of the Motor Vehicles Ordinance, 1983

And In the matter of:

Catherine Masud (a. k. a. Catherine Shapere,

Wife of the late Abu Tareque Masud currently residing at B-2, Siza Court 152, Monihar Road, Monipuri Para Police Station-Tejgaon, Dhaka Permanent Address-

170, Darling Road, Salem CT 06420 USA and two others

…  Petitioner-claimants

Versus

Md. Kashed Miah

Son of Haji Loshkor Miah

Co-owner of Chuadanga Deluxe Service Gokulkhali

Police Station-Alamdanga District-Chuadanga

Present Address-

Chuadanga Deluxe Service

New Malik Traders

Shahid Abdul Kashem Sharok Chuadanga

Head Office-

Counter No. Gha/16

Inter City Bus Terminal Mirpur, Dhaka and four others

… Opposite-parties

Dr. Kamal Hossain with

Ms. Sara Hossain,

Mr. Ramzan Ali Sikder,

Mr. Md. Motahar Hossain, Advocates

… For the petitioner-claimants

Mr. Md. Abdus Sobhan Tarafder, Advocate

… For opposite-party Nos. 1 to 4

Mr. Ehsan A. Siddiq with

Mr. Imran A. Siddiq,

Dr. Chowdhury Ishrak Ahmed Siddiky, Mr. Mohammad Shishir Manir, Advocates

… For opposite-party No. 5

Mr. A. Z. M. Fariduzzaman, Advocate

… For opposite-party No. 6

Mr. Mahbubey Alam, Attorney General with Ms. Israt Jahan, DAG

Ms. Nurun Nahar, AAG

Mr. Swarup Kanti Dev, AAG

Mr. A. H. M. Ziauddin, AAG

… For the Court

 Arguments heard on: 09.07.2017, 10.07.2017, 11.07.2017, 12.07.2017, 16.07.2017, 18.07.2017, 19.07.2017, 20.07.2017 and 16.11.2017.

Judgment on the 03rd December, 2017

Present:

Ms. Justice Zinat Ara

            And

Mr. Justice Kazi Md. Ejarul Haque Akondo

Zinat Ara, J:

This is an application under section 128 of the Motor Vehicles Ordinance, 1983 (shortly, the MV Ordinance) for compensation over the road accidental death of Abu Tareque Masud and injuries caused to claimant No. 1, Catherine Masud, wife of Abu Tareque Masud (now deceased). The two other claimants of this case are Nishaad Binghamputra Masud and Nurun Nahar, son and mother of Abu Tareque Masud, respectively.

Transfer of the Case to this Court

The claimants initially filed the case under section 128 of the MV Ordinance before the District Judge, acting as the Motor Accident Claims Tribunal, Manikganj (shortly, the Tribunal). It was accepted by the Tribunal and registered as Miscellaneous Case No. 01 of 2012 on 13.03.2016.

To contest the case, opposite-party Nos. 1 and 2, Md. Kashed Miah and Md. Khokon Miah (Md. Mujibul Haque Khokon) filed a joint written statement/objection and opposite-party Nos. 3, 4 and 5 Md. Jahangir Kabir (Tuhin), Md. Jamir Uddin and Reliance Insurance Limited, each filed a separate written statement/objection before the Tribunal. The case proceeded and the Tribunal, on 23.08.2012, framed issues to decide the merit of the case.  

Thereafter, the claimants filed Transfer Petition No. 01 of 2013 before the High Court Division under article 110 of the Constitution for transfer of the case from the Tribunal to the High Court Division. Whereupon, a rule was issued by the High Court Division on the matter and upon hearing, the rule issued was made absolute by the High Court Division by judgment dated 29.10.2014. Consequently, Miscellaneous Case No. 01 of 2012 was withdrawn from the Tribunal and registered/re-numbered as Transferred Miscellaneous Case No. 01 of 2016. Eventually, the Hon’ble Chief Justice has sent this case for hearing and disposal by the Division Bench presided over by one of us (Zinat Ara, J.).

Addition of Party

The petitioners, after transfer of the case to the High Court Division, filed an application, on 26.03.2016, for adding the United Commercial Bank Limited, Jhenaidah Branch, Jhenaidah (the Bank, in brief) as opposite-party No. 6 to the claim application on the ground that the Bus was mortgaged to the Bank by Md. Jahangir Kabir being owner of the Bus and Proprietor of M/S Ruhin Motors. The application was allowed and the Bank has been added as opposite-party No. 6 to this case.

Case of the Petitioner-claimants

The sum and substance of the case of the petitioner-claimants

is as under:-

Deceased victim Abu Tareque Masud (shortly, Tareque) used to make films. He intended to make a new film titled “Kagojer Phool.” So, on 13.08.2011, he started from Dhaka along with nine others, namely,- (1) claimant No. 1, Catherine Masud (shortly mentioned as Catherine), (2)  Cameraman Ashfaque Munier, (3) Painter Dhali Al- mamun, (4) Painter Dilara Zaman Jolly, (5) Tareque’s Assistant Monish Rafiq and several Production Crew Members being (6) Saidul Islam Saeed (briefly, Saidul), (7) Wasim, (8) Jamal and (9) driver of the Microbus Mostafizur Rahman for visiting a shooting site at Saljana village of Shibalaya Upazila under Manikganj district. The team went there by a microbus bearing registration No. DHAKA METRO CHA-13-0302 (shortly, the Microbus) owned by claimant No. 1, Catherine and Tareque. After arrival at Saljana, they spent some time there.

On their way back to Dhaka at about 12.30 p.m., the Microbus arrived at a place named “Joka” on the Dhaka- Aricha Highway under Ghior Police Station. At that time, a passenger bus in the  name  and style  “Chuadanga  Deluxe

Paribahan” licensed as “Dhaka Metro Ba 14-4288 (hereinafter stated as the Bus) was coming from the opposite direction at a high speed. It was carrying about fifty passengers from Dhaka to Chuadanga. The Bus driver Md. Jamir Uddin (shortly, Jamir), in order to overtake a smaller bus, at a curving point of the road (Highway), suddenly took a sharp turn and continued to drive the Bus through the wrong lane i.e. right side of the road through which the Microbus was running and caused head on collision with the Microbus. The effect of the collision was disastrous. Five persons boarded in the Microbus, film-maker Tareque, the driver and three other passengers, died instantly. But Jamir, instead of stopping the Bus to assist the victims, sped away and then abandoned the Bus at Paturia, further ahead on the road towards Manikgonj. Out of the surviving passengers, four were injured, namely, Catherine, Dhali Al-Mamun, Dilara Begum Jolly and Saidul. They were initially taken to Manikganj Sadar Hospital. Subsequently, they were sent to Dhaka and admitted into Square Hospital.

On hearing about the accident, Sub-Inspector of Police (S.I.) Lutfar Rahman, S.I. Enamul Haque and other police personnel of Ghior Police Station rushed to the place of occurrence. On the same day i.e. on 13.08.2011, S.I. Lutfor Rahman lodged a First Information Report (FIR) 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 in killing the driver and four passengers  of  the  Microbus  and  causing  injuries  to  some other passengers of the Microbus. The FIR was recorded as Ghior Police Station Case No. 07 dated 13.08.2011 under sections 279, 337, 338-A/304-B and 427 of the Penal Code.

The claimants claim that deceased victim Tareque was a renowned film-maker. Catherine and Tarique were the owners of a production house named Audiovision. They were well-known for directing the films, “Muktir Gaan” (1995) and “Matir Moyna” (2002) (also released under English title “The Clay Bird”) the latter won the FIPRESCI International Critics Prize at the Cannes Film Festival in 2002 for its authentic, moving and dedicated portrayal of a country struggling for its democratic rights.

The claimants further claim that due to the death of Tareque, his wife Catherine, as a widow, has been deprived of the love and affection of her beloved husband. Their minor son, claimant No. 2, has been deprived of his father’s love, affection, support, care and nursery. Claimant No. 3, mother of Tareque, an old lady of 75 years and dependant on her eldest son Tareque, has been deprived of her son’s care, support and affection.

In the above noted background, the petitioners i.e. the claimants claim that opposite parties/defendant Nos. 1 to 4 as the custodians, owner and driver of the Bus and opposite party/defendant No. 5, Reliance Insurance Limited, as the insurer  of  the  Bus,  are  liable  to  pay  the  following compensation and damages caused due to the accident :-

The petitioners, by way of amendment of the original claim petition, claimed an amount of Tk. 2,18,04,646/- instead of Tk. 25,452/- for treatment and future treatment of Catherine. Thus, their total claim stands at Tk. 9,94,04,646/-.

The petitioner-claimants filed the original claim application for compensation under section 128 of the MV Ordinance as a simple petition and not in the prescribed form. Subsequently, they have submitted a filled up application form for the same compensation in CTA Form with their photographs. It was received and accepted by this court on 13.03.2016.

Case of Opposite-party Nos. 1 & 2 

The sum and substance of the case of opposite-party Nos. 1 and 2 as stated in their joint written objection/statement is as under:-

They are full brothers. They have been running the business of transporting passengers under the business banner “Chuadanga Deluxe Paribahan” in the route of Dhaka-Chuadanga-Dhaka. For running their business, they operate several passenger coaches (buses) along with the Bus. They are the actual owners of some of the buses but not the owners of all the buses including the Bus involved in the accident.

On the day of accident, on 13.08.2011, they were operating the Bus under necessary and valid documents like registration certificate, fitness certificate, tax-token, route permit and insurance certificate. They admit that on 13.08.2011, the Bus in question was in operation under their business name/banner “Chuadanga Deluxe Paribahan” and that on its way from Dhaka to Chuadanga, the Bus reached the place called ‘Joka’ when the accident took place. They claim that the driver of the Microbus carrying the victims crossed the divider line of the road and hit the Bus directly. It is the driver of the Microbus, not the driver of the Bus, who was driving the Microbus recklessly at a high speed. On the contrary, the driver of the Bus, in order to avoid the accident, slided the bus beside the road, but failed to avoid the collision. However, due to the said collision, several road side trees and the left side of the Bus were damaged.   

They admit that the police initiated a criminal case by lodging an FIR over the accident and submitted a charge- sheet in the said case. They claim that the said criminal case is pending for disposal and that before disposal of the criminal case, the claimants have filed this claim case out of greed. They contend that, in the above circumstances, the claim made in this case is not maintainable and liable to be disallowed.

Case of Opposite-party No. 3  

The case of  opposite-party No. 3, Jahangir Kabir Tuhin, is that the Bank is the owner of the Bus involved in the accident, but it was being operated, in his Jimma, under the business banner of “Chuadanga Deluxe Paribahan.” With regard to the accident, he has

stated the facts similar to those stated by opposite-party Nos. 1 and 2.

Case of Opposite-party No. 4

Opposite-party No. 4, Jamir, in his separate written objection/statement, has stated that he is a poor man and a professional driver. He admits that, on 13.08.2011, at 12.30 p.m., he was driving the Bus in question as usual. When the Bus reached at Joka on the Dhaka-Aricha Highway from Gabtali, Dhaka towards Chuadanga, the Microbus carrying the victims crossed the divider line of the road and hit the Bus. He has raised similar objection to the claim as raised by opposite-party Nos. 1 to 3.

Case of Opposite-party No. 5

Opposite-party No. 5, Reliance Insurance Limited (in brief, Reliance), filed a written objection/statement stating that on 24.08.2010, this opposite-party, in course of its business, Reliance issued a Commercial Vehicle Comprehensive/Third Party Insurance Policy for the Bus, which was jointly owned by M/S Ruhin Motors, Proprietor- Md. Jahangir Kabir (Tuhin) as mortgagor and the Bank as mortgagee. According to the Insurance Policy document vide Motor Insurance Policy No. RIL /JES /MV(CV) /P-00303 /08 /2010(COMP) and Certificate No. RIL/JES/MV(CV)/CERT-00303/08/2010(COMP) (briefly stated as the Insurance Policy), the Insurance Policy was valid for the period from 26.08.2010 to 25.08.2011.

The Insurance Policy contains specific terms of coverage stipulating the quantum of the liabilities of Reliance in respect of losses caused to third parties by the vehicle insured, which are,- (1) for death- Tk. 20,000/-, (2) for severe hurt- Tk. 10,000/-, (3) for any other hurt- Tk. 5,000/- and (4) for property damage-Tk. 50,000/-.

 On 14.08.2011, the Jessore Branch Manager of Reliance informed the Head Office of Reliance that the owners of the Bus submitted a formal claim, under the Insurance Policy for Tk. 8,17,000/- for the damage caused to the Bus. In that claim, supported by the statement of the driver of the Bus, it has been stated that, on 13.08.2011, the Bus was running from Dhaka to Chuadanga carrying 32 passengers and the Bus had a head-on collision with a microbus (registration No. Dhaka Metro-Cha 13- 0302) at a place called ‘Joka’ under Ghior Police Station, Manikganj on the Dhaka-Aricha Highway. In the said claim it has further been stated that the Microbus was on the wrong side of the road and was trying to overtake another vehicle and that the Bus, in an attempt to avoid collision, hit the road side trees, but failed to avoid accident and that due to the accident, the Bus was damaged and the driver, the helper and some passengers were injured. After observing necessary formalities and conducting

survey, Reliance has paid to the owner of the insured Bus an amount of Tk. 1,45,350/- as full and final settlement of the claim under the Insurance Policy.

Reliance claims that, under the Insurance Policy, it has limited liability to a third party as stated above and, as such, it is not liable to pay the compensation as claimed by the claimants.

Reliance in an additional written objection/statement has stated that the case is not maintainable in the present form, as it has not been filed in the Form CTA as prescribed by rule 220 of the Motors Vehicles Rules, 1940 (hereinafter mentioned as the MV Rules).

Reliance has further stated that after making payment on the claim of the Bus owners, recently, it came to the knowledge of Reliance that the driver of the Bus had no valid driving license. Reliance has also stated that it came to know that charge-sheet No. 15 dated 22.03.2012 was submitted in Ghior Police Station Case No. 07 dated 13.08.2011 to the effect that the driver of the Bus had no valid driving license on the date of accident, that the validity of his driving license had expired three years back and that he managed to collect a fake slip about renewal of the expired driving license.

(Bold, to give emphasis)

Issues to be Considered

Before transfer of the case to this Court, the Tribunal framed the following issues:-

          “¢hQ¡kÑ ¢hou

1z  Aœ¡L¡−l j¡jm¡¢V Qm−a f¡−l ¢Le¡?

2z Aœ j¡jm¡u fËcš ®L¡V Ñ¢g p¢WL B−R ¢Le¡?

3z  Aœ j¡jm¡ a¡j¡¢c−a h¡¢la ¢Le¡?

4z  Aœ j¡jm¡u fr¡i¡h ®c¡o B−R ¢Le¡?

5z  Aœ j¡jm¡l Bl¢S−a h¢eÑa j−a ®j¡Vlk¡e c§OÑVe¡l SeÉ

r¢af§le h¡hc h¡c£fr ¢hh¡c£−cl ¢eLV q−a 7,76,25,452/- V¡L¡ ®f−a A¢dL¡l£ ¢Le¡?

6z  Aœ j¡jm¡l Bl¢S−a h¢eÑa j−a ®j¡Vlk¡e c§OÑVe¡l SeÉ

r¢af§le h¡hc h¡c£fr ¢hh¡c£−cl ¢eLV q−a ®f−a A¢dL¡l£ q−m ¢L f¢lj¡e V¡L¡ ®f−a A¢dL¡l£?

7z  h¡c£fr fË¡b£Ña fË¢aL¡l ®f−a f¡−l ¢Le¡?”

After transfer of the case, none of the parties raised any objection to the issues framed by the Tribunal. However, as stated earlier, the claimants, by amending the claim petition, have claimed Tk. 9,94,04,646/-.

So, issue No. 5, accordingly, stands modified on the quantum of compensation.

The Manner of Contest in the Trial

In support of their claim, the petitioner-claimants have adduced oral evidence through seven witnesses, PWs-1 to 7, including petitioner-claimant Catherine herself as PW-1. They have produced some documents marked as Exbts.-1 to 9 and 15.

On the contrary, opposite-party Nos. 1 to 3 and opposite- party No. 4-Jamir, the driver of the Bus, have adduced oral evidence through five witnesses (OPWs-1 to 5) including opposite- party No. 4 himself as OPW-1 and opposite-party No. 2 Md. Mujibul Hoque Khokon as OPW-2.

 Opposite-party No. 5-Reliance has produced one witness as OPW-1, who also produced two documents marked as Exbts.-A and B.

The witnesses of the petitioners’ side were cross-examined by the respective opposite-parties, sometimes jointly and sometimes separately. Similarly, the witnesses adduced by the opposite-parties were also cross-examined by the petitioners’ side.

The Bank (added-opposite-party No. 6) though has filed a written objection/statement, but neither adduced any evidence, oral or documentary, nor cross-examined any witness of the other parties.

Apart from the above noted manner of participation in the trial, the learned Advocates for all the contending parties, including the Bank, advanced detailed arguments. 

Substance of Depositions of Witnesses of the Parties

P.W.1-Catherine, claimant No. 1, appeared and deposed on behalf of herself and the two other claimants, being her minor son Nishaad and her mother-in-law, Nurun Nahar. She produced a guardianship certificate for her son Nishaad. She stated that her husband Tareque died at the age of 54 years due to accident. She and Tareque were film-makers and owners of a film producing enterprise, namely, Audiovision Productions. Both of them were Co-Directors of Audiovision Productions. Together they made several films including ‘Muktir Gan’ and ‘Matir Moyna’. Matir Moyna won the International Critics Prize at Cannes Film Festival in 2002. They decided to make a new film titled ‘Kagojer Phool.’ So, on 13.08.2011 at 06.00 a. m., she herself, her husband along with others, being ten in all, including the driver, started their journey from their home situated at Monipuripara, Dhaka by their own microbus bearing No. Dhaka Metro-Cha 13-0302 (the Microbus) towards the shooting site at Saljana village of Shibalaya Thana in Manikganj. They reached the site at about 09.00 a.m. and spent about two and half hours there. At about 11.30 a.m. they boarded the Microbus for returning to Dhaka.

 She described their sitting arrangement inside the Microbus. She herself was sitting facing backside of the road. So, she could see everything in the backside. At about 12.10 to 12.15 p.m, the Microbus reached the Dhaka-Aricha Highway. They were heading towards Dhaka in the eastern side. The Microbus was running through the correct lane at a low speed, as it was raining and they were looking for a place to take lunch. She was in a seat facing backwards and so, she could clearly see from the backside window that they were travelling on the correct side of the road. After about fifteen minutes of driving on the Highway, at about 12.30 p.m., they faced the accident. Suddenly, she heard a tremendous sound of crashing and she was pushed back by the force of the impact. She could hear the roaring sound of a huge engine towards her left side and their Microbus was being pushed backward down the road. She felt a blow on the back of her head. After about ten seconds, she noticed bright light overhead. She could understand later on that the roof of the Microbus had been torn open by the Bus that hit them. None from the Bus came to help them. Rather, she heard the sound of the Bus speeding away towards the left.

After a little while, the local people came to help them. With their help, she and her co-passenger Jolly could get down from the Microbus and found the damage done to the Microbus and also found the dead bodies inside. Monish Rafique and some local people found Dhali Al-Mamun in the Microbus alive, but seriously wounded. Saidul was also injured. She also found the dead body of co-passenger Mishuk Munier fallen out of the Microbus to the road on the other side. With the help of local people, they stopped a running local passenger bus to make arrangement for treatment of surviving passengers of the Microbus. She and three other surviving co-passengers boarded the bus for going to hospital. Monish Rafique, the only one who was not injured, stayed back with the Microbus.

Firstly, they had gone to Manikganj Hospital. Dhali Al- Mamun was bleeding heavily. She herself had head injury. Jolly and Saidul had broken arms. After initial treatment at Manikgonj Hospital, they, by two ambulances, went to Square Hospital in Dhaka and got admitted there.

 She had a CT scan which showed cranial hematoma. She was released on the next date. Few days after, she noticed some changes in her eye-sight with pain and flashes. But, before the accident, she had perfect vision. Her eye-sight gradually deteriorated. In December, 2011, she went to USA and got her eyes were checked. The US doctor found that she had developed an epi retinal membrane (ERM) in right eye, which developed due to traumatic injury to the eyes. For the next four years, she had been under treatment for her eye condition. Retina Specialist, Dr. Niaz Rahman of Bangladesh opined that her eye sight has been permanently affected, possibly as a result of the trauma in the accident.

Subsequently, she came to know that Manikgonj police had come to the spot of the accident immediately after and initiated a criminal case over the accident. In that case, the Investigating Officer examined her as a witness.

 After the accident, she had to close their business. In 2011, as per the tax return filed in USA, the joint income of herself and Tareque was approximately taka five lacs per month. But the death of Tareque has caused loss to the business and also deprived her of the love, affection and care of Tareque. Similarly, she herself, her minor son and mother of Tareque, as dependents of Tareque have been deprived of love, affection and care of Tareque.

As stated in the plaint, she mentioned ten items of compensation claimed by herself and two others claimants, amounting to Tk. 9,94,04,646·00.

In support of her statements, she produced the following documents:- (1) Succession Certificate, Exbt.-1, (2) Guardianship Certificate for her son, Exbt.-2, (3) Plan for making of the film titled ‘Kagojer Phool,’ Exbt.-3, (4) Trade License for their Production Company, Exbt.-4, (5) Birth Certificate of her son Nishaad, Exbt.-5, (6) Death Certificate of Tareque, Exbt.-6, (7) Certified copy of the seizure list, Exbt.-7, (8) Certified copy of the F.I.R. relating to the accident, Exbt.-8 and (9) Certified copy of the charge-sheet, Exbt.-9.  

She has denied the defence suggestion that the Bus was on the correct side of the road and that the Microbus crossed the divider line and hit the Bus.

In cross-examination by the Insurer Reliance (opposite party No. 5), she has stated that the certificate of insurance for  the Microbus expired on 25.07.2011, but due to her stay in USA at the end of 2011 and her father-in-law’s death in August, 2011, she could not get renewal of the insurance for the Microbus in time. She could not re-call if any part of the Microbus was lying on the road crossing the divider line. She admitted that she deposed as a witness in Sessions Case No. 109 of 2012 relating to the accident. She admitted that the first indication of the accident was the sound of a tremendous crashing noise and that she did not hear any horn of the Microbus prior to the accident.

In cross-examiantion by opposite-party Nos. 1 to 4, she stated that it was raining on that day and as they were looking for a place to stop to take some food, the Microbus was being driven slowly. She stated that probably the Bus that caused accident was mortgaged in favour of the Bank and for that reason, she made the Bank a party to the case subsequently. She admitted that while she was sitting in the Microbus, she could not see the exact traffic situation in front of the Microbus but voluntarily added that other co-passengers and other witnesses to the accident told her that the Bus was overtaking another bus at the time of accident.

PW.-2 Md. Saidul Islam, a passenger of the Microbus, corroborated the statements of PW.-1 with regard to the date, time and the purpose of the visit of the ten member team including himself, Tareque and others to Saljana, their return journey by the same Microbus and the vivid description of the accident at 12.30 p.m. on the Dhaka-Aricha Highway. He described the sitting arrangement of those ten including himself in the Microbus. P.W.2 also corroborated PW-1 about the light rain and about searching for a food shop, when the Microbus was running through Dhaka- Aricha Highway.

PW-2 further stated that from his seat he could see the frontal scenario ahead of the Microbus and thus, he witnessed the manner in which the accident took place. He narrated that the Microbus was running within the left side lane from the middle traffic line of the highway. He saw a turning/curving point at the right side of the road towards Dhaka. He found, in the front of the Microbus, a minibus at the right side coming from the opposite side i.e. from Dhaka towards Aricha. Then, all on a sudden, he found that a big bus overtook the minibus and the Bus hit the Microbus with force and he became senseless.

PW-2 further stated that he sustained injuries on his legs, right arm and head. Subsequently, he had surgical operation in his right arm and a steel device was placed in his right arm. PW-2 also stated that at the Square Hospital, he heard from others that five of his co-passengers, namely, Tareque, Mishuk Munier, Washim, Zamal and driver Mostafiz had been killed in the accident and that the surviving four others had sustained various injuries.  

In cross-examination by the Bus driver, PW-2 denied the defence suggestions that the dirver of the Bus, before the accident, had tried to avoid accident by blowing a horn and that the Microbus hit the Bus after crossing the middle traffic line of the highway.

Opposite-party Nos. 1 to 3 declined to cross-examine PW-2.

However, Reliance, the Insurer, cross-examined PW-2 and he denied the suggestion that the driver of the Microbus was responsible for the accident.

PW-2 was further cross-examined on some other points, but there is no deviation from what he has stated in examination-in- chief.

PW-3 is Dilara Begum Jolly, another surviving passenger of the Microbus. She corroborated the statements of PWs 1 and 2 relating to the date, time, place and manner of the accident. She stated that the Microbus was running through the left side of the road. Suddenly, the Bus hit the Microbus and that the Microbus was being pushed by the Bus for about ten seconds with severe forces after the said hit and that the accident led to the instant death of the driver and four co-passengers of the Microbus including Tareque and injuries caused to herself and others.

PW-3 was cross-examined separately by opposite-party Nos. 1-3 and by opposite-party No. 4. But there is no deviation from her statements made in the examination-in-chief.

Opposite-party No. 5, the Insurer Reliance, declined to cross- examine PW-2.

PW-4, Dhali Al-Mamun, another co-passenger of the Microbus,  also corroborated the statements of PWs-1, 2 and 3 about the date, time and place of the accident. He also narrated their sitting arrangement in the Microbus and the manner of the accident including the fact that the Microbus was running through the left/correct lane of the road and the injuries sustained by him. He further stated that he became senseless and regained his sense at a hospital in Bangkok and he had to undergo several surgical operations to recover from head, shoulder and other injuries. He denied the defence suggestion that the Microbus hit the Bus.

PW-5 is S. I. Md. Lutfor Rahman. He has stated that on 13.08.2011, he was serving as a Sub-Inspector of Police at Ghior Police Station of Manikganj district. On that day, on the basis of General Diary No. 437, he with his companion police force went to the site of accident called “Joka” on the Dhaka-Aricha Highway. He found the severely damaged Microbus and five dead bodies and a passenger bus of Chuadanga Deluxe Paribahan. He has mentioned the registration numbers of the Microbus and the Bus.

On asking a passenger of the Microbus named Md. Monish Rafique and the local people, he came to know that the Microbus with passengers was going towards Dhaka and that the Bus was coming from Dhaka and going towards Aricha. They told him that the Bus was being driven recklessly at a high speed and it the Microbus directly at about 12.30 p.m. He found the backside roof of the Microbus torn apart. He came to know that the five persons killed in the accident were Tareque, Mishuk Monier, Mostafizur Rahman, Wasim and Jamal and that Catherine, Dhali Al-Mamun and Dilara Begum Jolly were injured.

 He seized the Microbus and the Bus by preparing seizure lists, prepared inquest reports on the dead bodies of the victims. However, he did not send the dead bodies to the morgue at the request of the relatives of the deceased persons. On the same day, he lodged an FIR bearing No. 07 dated 13.08.2011 and stated therein that the Bus driver of the Bus named Jamir was responsible for the accident. He produced and proved the certified copy of the FIR and the seizure list, which were used as evidence in the criminal case. These two documents have been marked as Exbts. 8 and 7 respectively in this case. He added that the original of those documents were lying with the record of the relevant criminal case.

In cross-examination, he admitted that he had not witnessed the accident. But, immediately after the accident, he found the Bus on the left side of the road towards Aricha and right side towards Dhaka and the Microbus in the middle of the road. He admitted that he did not get the driving license of the driver of the Microbus and that he had not conducted any search inside the Microbus.

PW-6 is Md. Ashraf-ul-Islam. He stated that, while he was working as Officer-in-Charge of CID, he conducted investigation of the criminal case initiated on the basis of the aforesaid FIR dated 13.08.2011. He narrated the manner of his investigation of the criminal case relating to the accident and produced and proved the certified copy of the charge-sheet marked as Exbt.-9 in this case and Exbt.-11 in criminal case.

His findings recorded in the charge-sheet are quoted below:-

“ac¿¹L¡−m B¢j h¡−pl Hj| ¢i| BC (Motor Vehicle

Inspection) ®VÖV Ll¡Cz ¢l−f¡VÑ fkÑ¡−m¡Qe¡u ®cM¡ k¡u h¡−pl ¢ØfX NieÑl ¢pm (N¢a ¢eu¿»L) ®VÇf¡XÑ Ll¡ AbÑÉ¡v h¡p ®~a¢ll ®L¡Çf¡e£

LaѪL ¢e¢c ÖÑ V N¢a p£j¡ ®l−M N¡s£ Q¡m¡−el ®k h¡dÉh¡dLa¡ ¢Rm a¡q¡

eÖV Ll¡ quz H−r−œ ¢ØfX NieÑl ¢pm (N¢a ¢eu¿»L) e¡ b¡L¡l L¡l−Z

h¡−pl N¢a ¢eS CµR¡ja h¡s¡−e¡ Lj¡−e¡ pñhz k¢c ¢ØfX NieÑl ¢pm

(N¢a ¢eu¿»L) ®VÇf¡XÑ Ll¡ e¡ b¡La a¡q−m LMeC h¡−pl ¢e¢cÑÖV N¢al

®h¢n N¢a−a h¡p Q¡m¡−e¡ pñh ¢Rm e¡z ac¿¹L¡−m ®cM¡ k¡u h¡−pl

¢gV−ep −ju¡c Eš£eÑ ¢Rmz h¡−pl XÊ¡Ci¡l S¢jl ®q¡−p−el XÊ¡C¢iw m¡C−p¾p Hl ®ju¡c ®hn L−uL hRl f§−hÑ Eš£eÑ quz ¢a¢e S¡e¡e ®k, XÊ¡C¢iw m¡C−p¾p eh¡u−el SeÉ ¢hBl¢VH LaѪf−rl L¡−R XÊ¡C¢iw m¡C−p¾p Sj¡ B−Rz HC j−jÑ HLM¡e¡ L¡NS fËcnÑe L¢l−m ac¿¹L¡−m

®cM¡ k¡u I L¡NS¢V i¨u¡z Bj¡l ac−¿¹ Q¥u¡X¡wN¡ ¢Xm¡„ f¢lhq−el

h¡p e¡ð¡l Y¡L¡ ®j−VÊ¡-h 14-4288 h¡p¢V l¡¢œ 4 V¡l pju Q¥u¡X¡wN¡

®b−L Y¡L¡l E−Ÿ−nÉ lJu¡e¡ q−u pL¡m 10.00 V¡u N¡ham£ ®f±R¡uz

f¤el¡u 10.30 ¢j¢e−V N¡ham£ ®b−L k¡œ£ ¢e−u Q¥u¡X¡wN¡l E−Ÿ−nÉ

lJu¡e¡ L−l Hhw ¢OJl b¡e¡d£e ®S¡L¡ e¡jL Øq¡−e Ae¤j¡e 12.30

¢j¢e−V ®f±R¡u Hhw c¤OÑVe¡ OV¡uz OVe¡Øq−m 5 Se j¡l¡ k¡u Hhw h¡L£

3 Se …l¦al Bqa qu Hhw h¡L£ 2 Se p¡d¡le SMj fË¡ç quz jªa

hÉ¢J²®cl j−dÉ ¢hMÉ¡a Qm¢QœL¡l a¡−lL j¡p¤c, ¢h¢nÖV p¡wh¡ cL Hhw

LÉ¡−jl¡jÉ¡e ¢jöL j¢el, XÊ¡Ci¡l ®j¡Ù¹¡¢gS¤l lqj¡e, ®pV ¢XS¡Ce¡l

Ju¡¢pj Hhw S¡j¡mz BO¡a fË¡ç−cl j−dÉ ¢R−me a¡−lL j¡p− ¤cl Øœ£

LÉ¡−b¢le j¡p¤c, QVÊNË¡j ¢hnÄ¢hcÉ¡m−ul ¢nrL Y¡¢m Bm j¡j¤e Je l

¢j−pp ¢cm¡l¡ S¡j¡e S¢m, p¡Cc¤l lqj¡e  p¡Cc, j¢en l¢gLz

OVe¡Øqm f¢lcnÑeL¡−m ®cM¡ k¡u OVe¡Øqm ®b−L jq¡psL Hl 175

g¥V f§−hÑ HLV¡ h¡L B−Rz OVe¡Øqm ®b−L jq¡ps−Ll f§−hÑ 450 g¥V c¤l−aÄ Bl HLV¡ h¡L B−Rz 450 g¥V h¡L ®b−L B¢lQ¡l ¢c−L k¡Ju¡l f−b 175 g¥V c¤−l Bl HL¢V h¡L b¡L¡u flfl c¤C¢V h¡−L

h¡−pl N¢a ¢eu¿»e e¡ Ll¡l L¡l−Z p¡c¡ j¡¢LÑw Ll¡ ®l¡X ¢Xi¡CX¡l f¡l

q−u j¡C−H²¡h¡p−L BO¡a L−l f¤el¡u h¡−j 70 g¥V f¢ÕQ−j k¡Ju¡l

fl jq¡psL qC−a h¡p¢V L¡Q¡ l¡Ù¹¡u ®e−j k¡u Hhw ®j¡V 126 g¥V

k¡Ju¡l fl h¡p¢V flfl 3 ¢V N¡−Rl p¡−b d¡‚¡ −M−u ®b−j k¡uz

h¡−pl N¢a k¢c ¢eu¿»−e b¡La a¡q−m 175 g¥V, 450 g¥V Hhw c¤OÑVe¡l

fl 126 g¥V f−l 3¢V N¡−Rl p¡−b d¡‚¡ −Ma e¡z”

 In cross-examination, PW-6 stated that he could not examine the passengers or the Supervisor/Conductor or Helper of the Bus, as they were not available for recording their statements. During investigation, he came to know that the Bus was purchased by Ruhin Motors by taking loan from the Bank and the blue book of the Bus was in the name of the Bank and Ruhin Motors jointly. During investigation, he found that the Bus and the Microbus had head-on collision. He denied the defence suggestion that he found both the Microbus and the Bus on the left side of the road.

PW-7 Dr. Niaz Abdur Rahman  has stated that he is an Ophthalmologist having 27 years’ experience as a Retina Specialist. He is practising in Bangladesh Eye Hospital as a Retina Consultant and he is also the Managing Director of the said hospital. Catherine (PW-1) came to him on 22.09.2014 for her eye-examination. On examination, he found that she had an operation in her right eye and that her right eye had a good vision with glasses. Catherine also produced some medical reports before him showing that she had retina operation  on her right eye and she had epi retinal membrane removal through surgery. Her left eye showed signs of epi retinal membrane. Catherine informed him that in a motor accident, she had been hit on her head and eyes and that in the next couple of years, her vision became blurred and she saw gray spots. Membrane develops slowly after trauma.

PW-7 proved the medical report dated 7th March, 2016 prepared by him and marked as Exbt.-15 and also the signature of the issuing doctor. He further stated that Catherine developed cataract as the consequence of the retina surgery and that there is possibility that in future she might again develop epi retinal membrane.

In cross-examination, PW-7 admitted that in the US medical report dated 7th March, 2013 as submitted by the claimants’ side with documents, but not produced for marking as an exhibit, it contains certain statements about Catherine’s medical condition under the heading of ‘ocular history,’ “trauma-no.” On various dates during the periods from on 18th June, 2013 to 17th December, 2015, the said US medical report under the heading of ocular history contains “trauma-no.”

PW-7 further admitted that in the said US medical report dated 7th March, 2013, it has been stated,- “patient state July, 2011 her son was playing with plastic shovel and was poked with it in the OD (right eye), states she had pain short after.” He also admitted that this incident was not mentioned in his medical report and that he had not gone through the whole US medical report before issuing medical report dated 7th March, 2016. He also admitted that he had no knowledge if the US physician refused to issue medical report stating “trauma due to

accident.” However, he denied the defence suggestion that he has issued a false and motivated medical report.

Md.  Jamir  Hossain (opposite-party No. 4), driver of the Bus, deposed as opposite-party witness No. 1 (OPW-1). He has stated that he has been driving  motor vehicles since 1978. His monthly income is Tk. 8,500/-. He has a family comprising five persons. On 13.08.2011, he was the driver of the Bus of Chuadanga Deluxe Paribahan having all valid driving documents. He started his trip at 10.30 a.m. from Gabtali, Dhaka through Dhaka-Aricha Highway. It was a drizzling day.

His bus (the Bus) was carrying about forty passengers and when he reached Joka, he found a Microbus coming towards Dhaka from the opposite direction. He was driving the Bus in the left side of the Highway. However, on seeing the Microbus being driven in a zigzag  manner, he took the Bus to the further left  side on the Kancha road (কাyচা রা া) beside the Highway. At that time, the Bus hit the trees on the left side. But the Microbus crossed the divider line of the  Highway  and hit the  right side  of  the  Bus and  the accident took place resulting in the death of several passengers and driver of the Microbus and injuries to some passengers. He fled away from the Bus due to fear of being beaten up by the public. No one was injured in the Bus. He stated that claimants are not entitled to get the compensation from him and the other opposite-parties. He added that he is a poor man and he has no capacity to pay the amount.

In cross-examination, he stated as follows:-

“paÉ eu −k, j¡¢eLN−”l ®g±Sc¡l£ Bc¡m−a B¢j

®L¡e XÊ¡C¢iw m¡C−p¾p Sj¡ ®cC e¡Cz Hhw AcÉ HC ¢ho−u ¢jbÉ¡ p¡rÉ ¢cm¡jz Cq¡ paÉ B¢j HLV¡ ®V¡−Le L¡XÑ j¡¢eLN−”l −g±Sc¡l£ Bc¡m−a Sj¡ ¢c−u¢Rm¡jz B¢j

Q¥u¡X¡‰¡u Bj¡l ¢eS h¡s£−a b¡¢L ®L¡e h¡s£ i¡s¡ ®cCe¡z

Bj¡−L fË¢a ¢c−e Bf-X¡Ee ¢VÊ−f 850 V¡L¡ ®cJu¡ quz

B¢j OVe¡l ¢c−e pL¡m 9.00 O¢VL¡u Q u¥ ¡X¡‰¡ ®b−L Y¡L¡u N¡ham£ ®f±R¡Cz Q¥u¡X¡‰¡ −b−L Y¡L¡u ®f±R−a 05.00 O¾V¡ pju m¡−Nz h¡p R¡s¡l 02 O¾V¡ B−N A¢g−p ¢l®f¡VÑ Ll−a

quz j¢Sh¤m qL ®M¡Le p¡−qh Q¥u¡X¡‰¡ hÉ¡e¡−l N¡s£¢Vl j¡¢mLz OVe¡l Øq−ml ¢fRe¢c−Ll l¡Ù¹¡ h¡L¡ ¢Rm a−h OVe¡Øq−ml l¡Ù¹¡ ®p¡S¡ ¢Rmz Cq¡ paÉ eu ®k, B¢j Ji¡l

¢Øf−X N¡s£ Q¡m¡C−a ¢Rm¡jz h¡p¢Vl ¢ØfX Nie lÑ i¡‰¡ ¢Rm Cq¡ paÉ euz Cq¡ paÉ eu ®k, Bj¡−cl HLV¡ ¢e¢c ÖÑ V pj−ul

j−dÉ N¿¹hÉØq−m h¡p ¢e−u ®f±R¡−e¡l h¡dÉh¡dLa¡ ¢Rmz ®S¡L¡ ®b−L Q¥u¡X¡‰¡ N¿¹hÉØq−m ®f±R¡−a Ae¤j¡e 3|30 ®b−L 4.00 O¾V¡ pju m¡−Nz Y¡L¡ ®b−L Q¥u¡X¡‰¡l c¤laÄ 240 ¢Lx¢jxz c¤OÑVe¡l f§−hÑ B¢j B−Ù¹ B−Ù¹ N¡s£ Q¡m¡Cu¡ h¡j ¢c−L e¡j¡C Hhw b¡j¡Cz Cq¡ paÉ ®k, h¡p¢Vl h¡j ¢c−L d¡‚¡®m−N r¢aNËÙ¹

quz Cq¡ paÉ eu ®k, B¢j ®hf−l¡u¡ N¢a−a Q¡m¡C−a ¢Rm¡j k¡q¡l gmn˦¢a−a N¡s£¢V N¡−Rl pw−N d¡‚¡m¡−Nz paÉ eu −k,

B¢j ®hf−l¡u¡i¡−h EµQ N¢a−a l¡Ù¹¡l jdÉha £Ñ ¢hi¡Se −H²¡p

L−l EÒV¡ ¢cL ®b−L Bp¡ j¡C−H²¡h¡−p p−S¡−l d¡LL¡ j¡¢l

Hhw c¤OÑVe¡ OV¡Cz paÉ eu ®k, B¢j c O¤ VÑ e¡ O¢V−u 05 Se −m¡L−L ¢eqa L¢l J 3 Se−L Bqa L¢l Hhw j¡C−H²¡h¡p¢V j¡l¡aÈL r¢aNËÙ¹ L¢l Hhw HC L¡l−Z B¢j OVe¡Øqm ®b−L f¡m¡Cu¡ k¡Cz”

OPW-2 Md. Mujibul Haque Khokon (opposite-party No. 2) deposed on his behalf and also on behalf of opposite-party Nos. 1 and 3. He stated that United Commercial Bank, Jhenaidah is the owner of the Bus. He further stated as follows:-

 “3ew ¢hh¡c£ S¡q¡‰£l L¢hl a¥¢q−el ®m¡e HL¡E−¾V

HC N¡s£¢V B−R Hhw ¢a¢e HC N¡s£¢Vpq a¡l Øq¡hl pÇf¢š hÉ¡w−Ll L¡−R håL ®l−M−Rz B¢j Hhw 1 ew fË¢afr Bj¡l

i¡C Q¥u¡X¡w‰¡ ¢Xm¡„ f¢lhq−el hÉ¡e¡−ll pšÅ¡¢dL¡l£z OVe¡l

pju 13-08-2011 Q¥u¡X¡w‰¡ ¢Xm¡„ f¢lhq−el hÉ¡e¡−l

¢h¢iæ j¡¢mL¡e¡d£e phÑ−j¡V 12 ¢V N¡s£ ¢Rmz Bj¡l hÉ¡e¡−l

HC N¡s£…¢m Qm¡Qm L−l Hhw Bj¡l ®Y~ÊX m¡C−p¾p B−Rz B¢j fË¢a¢V N¡s£l ¢VÊf fË¢a ¢e¢cÑÖV V¡L¡ f¡C ¢S¢f ¢p−ØVj Ae¤k¡u£z N¡s£l k¡ha£u L¡NSfœ hÉ¡w−Ll e¡−j ¢Rmz OVe¡l

pju HC N¡s£¢V XÊ¡Ci¡l S¡¢jl ®q¡−pe Q¡m¡Caz XÊ¡Ci¡l

S¡¢jl ®q¡−pe HLSe ®fn¡c¡l Q¡mLz 1988 p¡m ®b−L

XÊ¡Ci¡l  S¡¢jl  ®q¡−pe   Q¥u¡X¡w‰¡  ¢Xm¡„  f¢lhq−el  N¡s£ Q¡m¡Cu¡ B¢p−a¢R−mez Hl f§−hÑ AeÉ f¢lhq−e N¡s£ Q¡m¡Caz Bj¡l j−e qu ®k, h¡c£fr Bj¡−cl fr ®b−L r¢af¤le

f¡Ju¡l qLc¡l e¡z”

In cross-examination, OPW-2 stated that there was no

written agreement between him and Jahangir Kabir for operating

the Bus and the management thereof. He admitted that at the

request of Jahangir Kabir, he allowed the Bus to operate under

his banner and that the Bank never approached him for operating (f¢lQ¡me¡) the Bus. He added that “CEe¡C−VX Lj¢nÑu¡m hÉ¡wL eu l¦¢qe jVlp j¡¢mL S¡q¡‰£l L¢hl (3 ew fË¢afr) ®m¡−el j¡lga HC N¡s£ Q¡m¡−e¡l hÉhp¡ L−l.” He further stated that the Bus was placed

under their care and custody in the year 2010 and that since

then he used to supervise the affaris of the Bus including

validity and renewal of the driver’s license, which he did regularly and found that the driving license was valid before

the accident. He could not say if Jahangir Kabir repaid the loan to

the Bank. His own motor vehicles are six in number and

Chuadanga Deluxe Paribahan is his proprietorship establishment.

He further stated “Bj¡l ®VÊX m¡C−p¾p öd¤ Bj¡−L hÉhq¡l Ll¡l SeÉ ®cJu¡ q−u−R ¢L¿º f¢lhqe hÉhp¡u A−eL N¡s£ R¡s¡ Q¡m¡−e¡ k¡ue¡ h−m B¢j HL¢V hÉ¡e¡l ®~al£ L−l AeÉ¡eÉ N¡s£J Q¡m¡¢µRz”

OPW-3 is Nasrin Ashrafi. She stated that she was a teacher of a Non-Government College. On 13.08.2011 at 10.30 a.m., she was going to Chuadanga from Gabtali by the Bus. It was drizzling. When the Bus reached Joka of Manikganj, she saw a white microbus running at high speed was coming from the opposite direction. So, the Bus shifted towards the left side of the road. She narrated the next phase of the scenario as follows:-

“¢L¿º I j¡C−H²¡V¡ â¦a H−p hÉ¡−m¾p q¡¢l−u p¡c¡ BCmÉ¡ä −H²¡p L−l h¡−pl ¢ia−l Y¥−L ®h¢l−u k¡uz Bj¡−cl

h¡p¢V ®b−j k¡uz Hlfl B−p f¡−nl ®m¡LSe ¢is L−l Hhw Bj¡−cl−L h¡p ®b−L ®hl L−l ¢e−u B−pz Bj¡−cl h¡p¢V

h¡j ¢c−L ¢Rmz h¡−pl X¡e ¢c−L j¡C−H²¡h¡p¢V Bp¢Rmz I pj−u h¡−p fË¡u 37/38 Se k¡œ£ ¢Rmz”

In cross-examination, OPW-3 stated that she had collected the tickets of the Bus for traveling from Dhaka to Chuadanga, but at the time of shifting their house from Chuadanga to Dhaka, her valuables and the tickets were stolen. She herself and her husband were acquainted with the employees of Chuadanga Deluxe Paribahan and at their request, she deposed in another case.

OPW-4 is Md. Mahbub Haque. He stated that he was the Supervisor of the Bus on 13.08.2011, the accident day. At 10.30 a.m., they started their trip by the Bus for Chuadanga from Gabtali. When they had reached Joka, he found that a microbus was running at a high speed from the side of Paturia. The driver of the Bus blew the horn many times. But the driver of the Microbus, crossing the white dividing line entered into their lane, through which the Bus was running. To avoid collision, the driver of the Bus slowly shifted the Bus further to the Kancha road and hit several trees. However, the Microbus hit the right side of the Bus and crushed. The driver of the Bus fled away. Then OPW-4 made an arrangement for the passengers of the Bus with their goods to be shifted to another bus and all of them left for Chuadanga.

In reply to a question put by the Court, he admitted that he had not taken any step for helping the victims of the accident or informing the police about the accident.

In cross-examination, OPW-4 stated that he is unable to show any document about his status as an employee of Chuadanga Deluxe Paribahan. However, he knew that the Bus was under the supervision and control  (f¢lQ¡me¡) of Md. Mujibul Haque Khokon and his brother, Md. Kashed Miah.  He further admitted that there was a culvert and curving of the road, a little back from the place of accident towards Dhaka.

OPW-5 is Md. Hiron Sheikh. He stated that he was the Helper of the Bus and narrated the accident as under:-

 “j¡¢eLN®”l ®k¡L¡ e¡jL Øq¡−e ®f±¢R−m ®c¢M pjȤM ¢c−L ®b−L p¡c¡ j¡C−H²¡h¡p Bp−a¢Rmz Bj¡l XÊ¡Ci¡l−L

h¢m p¡j−e N¡s£ h¡−u Q¡−fez h¡−j Q¡f¡−a Q¡f¡−a h¡p N¡−Rl

p¡−b d¡‚ m¡−Nz â²a N¢a−a HL¢V j¡C−H²¡h¡p Bj¡−cl

h¡−pl X¡e p¡C−X d¡‚¡ j¡−lz j¡C−œ²¡h¡−pl 5(f ¡y Q) Se ®m¡L

j¡l¡ k¡uz B¢j J Bj¡l p¤f¡li¡CS¡l (j¡q¡h h¤ ) ®pM¡−e k¡C

J ®c¢M 5(fy¡Q) Se®m¡L j¡l¡ ®N−Rz a¡lfl g¡u¡l p¡¢iÑ−pl

N¡s£ B−pz a¡l¡ fy¡Q S−el m¡n ®hl L−lez Bj¡−cl h¡−pl

37/38 Se k¡œ£−cl AeÉ¡eÉ h¡−p a¥−m ¢cm¡jz Hlfl f¤¢mn

H−p Bj¡−cl h¡p ®lL¡l ¢c−u a¥−m ¢e−u k¡uz a¡lfl B¢j J

Bj¡l p¤f¡li¡CS¡l Q¥u¡X¡‰¡ Q−m ®Nm¡jz j¡C−H²¡h¡p¢V ®lL¡l ¢c−u f¤¢mn l¡Ù¹¡l p¡C−X ¢e−u k¡uz paÉ eu ®k, Bj¡−cl N¡s£l XÊ¡Ci¡l d£l N¢a−a h¡p Q¡m¡¢µRmz j¡C−H²¡h¡−pl XÊ¡Ci¡−ll N¡¢gm¢a−a c¤OV eÑ ¡ pwO¢Va q−u¢Rmz”

In cross-examination, OPW-5 admitted that he had no document to show that he was the Helper of the Bus and that he could not say the name of the owner of the Bus. He stated that, after the accident, he started working in a truck. However, at the request of Jinarul, a leader of the Workers’ Union, he deposed in Manikganj Court in a criminal case and also in this case. He further stated that before deposing in the Court room, he had a talk with the owner of the Bus in the Court verandah and replied as under:-

“fËnÀx LMeJ j¡¢m−Ll ü¡bÑ ¢h−l¡d£ ®L¡e L¡S L−l−Re ¢L e¡? Ešlx j¡¢m−Ll L¡S Ll−m j¡¢m−Ll ü¡bÑ ®cM−aC quz”

OPW-1 Ashiqur Rahman for opposite-party No. 5 is the sole witness produced by Reliance. He stated that Reliance is engaged in issuing insurance policies relating to general non-life insurance including motor vehicle insurance. He further stated that, on  24.08.2010, Jessore Branch of Reliance issued a motor insurance certificate in favour of opposite-party Nos. 2 and 3 to cover the comprehensive risk of the Bus owned by them. He produced and proved the copy of the Insurance Policy (marked as Exbt.-B). He further stated that as per this policy, the liabilities of Reliance are limited to Tk. 20,000/- for the death, Tk. 10,000/- for grievous hurt and Tk. 50,000/- for property damage. For damage of the Bus due to the accident, Reliance has paid Tk. 1,45,350/- to the Bus owner, Ruhin Motors. But Reliance has not paid any amount to the heirs of the persons killed or the persons injured in the accident, as no one claimed any compensation.

In cross-examination, he admitted that the capacity and number of seats of the vehicle has not been mentioned under clause 1(b) of the Insurance Policy; that the comprehensive insurance policy covers the death or bodily injury to any person or damage to any property of third party caused by the insured vehicle in a public place. He further admitted that Reliance appointed an independent surveyor to assess various aspects of the accident and that the Survey Report states that the insured bus received damage in its front left side, which might be caused due to severe hit with the road side trees.  He has gone through the additional written statement filed by Reliance and that he does not disown the statements made in the additional written statement.

(Bold and underlines put by us in the depositions of witnesses)

Arguments Advanced by the Contending Parties

Dr. Kamal Hossain, the learned Advocate appearing with the learned Advoicates Ms. Sara Hossain, Mr. Ramzan Ali Sikder and Mr. Md. Motahar Hossain for the petitioner-claimants, with reference to the claim petition, the written objection/written statements of the contending opposite-parties, the oral as well as the documentary evidence led by the parties put forward the following arguments:-

(1)            From the statements of the six witnesses of the petitioners, Catherine, Md. Saidul Islam, Dilara Begum Jolly, Dhali Al Mamun, S.I. Md. Lutfur Rahman and Md. Ashraful Islam, it is evident that opposite-party No. 4 Jamir was driving the Bus recklessly and at a high speed, that caused the accident, resulting in the death of Tareque and four others and injuries sustained by petitioner No. 1-Catherine and others.

(2)            The eye witnesses and the victims of the accident being PWs-1 to 4, in a voice, stated that the Bus, at the time of overtaking another motor vehicle called ‘mini bus’ at a curving of the road, rushed at a high speed and crossed the dividing line of the highway and hit the Microbus and as a result, the roof of the Microbus was torn apart causing death and injuries to the passengers.

(3)            From the written statements of the opposite- parties as well as the statements made by their witnesses (OPWs), it is evident that opposite- party Nos. 1 and 2 were in supervision and control of the Bus and in fact, they were engaged in operation (f¢lQ¡me¡) of the Bus in the route of Dhaka-Chuadanga-Dhaka under the business name/banner “Chuadanga Deluxe Paribahan” on the accident day.

(4)            Since they were in control and operation of the Bus and the accident was caused by their engaged driver Jamir, they are liable to pay compensation to the claimants.

(5)            In the criminal case, over the accident, being Sessions Case No. 109 of 2012, the Trial Court i.e. the Additional Sessions Judge, Manikganj has found the Bus driver Jamir guilty of the offence of culpable homicide under section 304 of the Penal Code and also of the offence under section 427 of the Penal Code and convicted and sentenced him under those sections. The decision of the said court shows that the Bus driver was found responsible for the accident.

(6)            PW-5, S. I. Lutfur Rahman, who initiated the said criminal case, stated in this case that he had rushed to the place of occurrence immediately after the accident and came to know from a passenger of the Microbus, Md. Monish Rafique, and the local people that the Bus was being driven recklessly at a high speed and that the Bus directly hit the Microbus.

(7)            PW-6, the Investigating Officer of the criminal case, has stated that, according to the report of Motor Vehicles Inspection, the speed Governor (N¢a ¢eu¿»L) of the Bus was tampered with and due to such tampering, the Bus could be driven beyond speed limit of the Bus that has been restricted/limited by the manufacturer. This independent witness (PW-6) further stated that the period of fitness of the Bus had expired and the validity period of the driving license of driver Jamir also expired several years back. These statements of PW-6 clearly prove that the driver (opposite party No. 4) as well as the owner and the operator of the Bus i.e. opposite party Nos. 1-3 are collectively and directly responsible for the accident and hence for paying compensation as claimed by the petitioners.

(8)            Reliance, the insurer, is also liable to pay the entire compensation to the petitioners under the indemnity clause of the Insurance Policy. However, Reliance may, by way of subrogation or otherwise, recover from opposite party Nos.

1-4, the compensation which Reliance has to pay in excess of the insurance coverage under the Insurance Policy.

(9)            The petitioners have also been able to prove that due to the accident, petitioner No. 1 (Catherine) had to not only spend money for treatment of her injured eye, but she will also have to spend money for future treatment of her injured eye and PW-7 Dr. Niaz Abdur Rahman supports it. Therefore, petitioner No. 1 is also entitled to the additional amount as claimed for treatment of her eyes.

(10)        The petitioners have lawfully claimed a reasonable amount of compensation on ten items of damage resulting from the accident amounting to Tk. 9,94,04,646/-.

(11)        The money claimed by the petitioners cannot compensate for the loss of life of Tareque and other sufferings faced by the claimants/petitioners, but the compensation can at least help them survive and render some consolation.

(12)        It is a common scenario in Bangladesh that everyday serious accidents are being caused by the drivers of buses and trucks due to their rough, high speed and reckless driving and thereby, causing death and injuries to many innocent people. In most cases, the victims remain silent and their miseries remain unattended. The petitioners are similar victims, however, with a difference that they have approached this Court with some claim against the backdrop of the accidental death of a renowned film-maker and the winner of an international award. 

(13)        The Court, while deciding the claims made in this case or similar claim made in other cases, must not confine itself on minor technicalities or minor discrepancies, because an accident generally takes place at the twinkle of an eye and the victims may not be able to see every minor details and narrate the same in Court.

In support of his submission, Dr. Kamal Hossain has relied on the decisions in the following cases:-

(i)               Bangladesh Beverage Industries Limited vs. Rawshan Aktar and others, reported in 69 DLR (AD) 196.

(ii)            Sri Manmath Nath Kuri vs. Mvi. Md. Moklesur Rahman and another, in CA No. 38-D of 1965, Mvi Md. Mokhlesur Rahman and others, in CA No. 73-D/1966, reported in 22 DLR (SC) 51.

(iii)         Amrit Lal Sood and another vs. Smt. Kaushalya Devi Thapar and others, reported in AIR 1998 (SC) 1433.

(iv)          An unreported decision dated 10.04.2003 passed by the High Court of Gujarat in First Appeal No. 1519 of 1979 with First Appeal No. 198 of 1980 (Oriental Fire and General Insurance Company vs. Firdos Pervez Mysorewala and others), reported in the electronic version of Manupatra i.e. MANU/GJ/0135/2003.

(v)            An unreported decision dated 05.10.2010 passed by the Supreme Court of India in Civil Appeals No. 1578-1579 of 2004 (New India Assurance Company Limited vs. Vimal Devi and others), reported in the electronic version of Manupatra i.e. MANU/SC/1087/2010.

In reply, Mr. Md. Abdus Sobhan Tarafder, the learned Advocate for opposite-party Nos. 1 to 4, takes us through the written objection/statement filed by opposite-party No. 1 and 2 jointly and the ones filed separately by opposite-party No. 3 and 4, the oral and documentary evidence as adduced by the contending parties and contends as under:-

(a)             The accident took place on 13.08.2011, and the claim application was filed before the Tribunal on 13.02.2012, but the Tribunal has not complied with the mandatory requirement of examining at least one of the claimants/applicants on oath as mandated by rule 220(2) of the MV Rules. The legal effect of such non-examination is that the claim petition is to be rejected under rule 221 of the MV Rules.

(b)            The application was not initially filed in Form CTA as provided under rule 113 of the MV Rules. However, the petitioners filed a filled up Form CTA before the High Court Division in the year 2016, which is beyond the period of six months as provided in section 128(3) of the MV Ordinance. Therefore, the entire proceeding of

the claim case as entertained by the Tribunal as well as by the High Court Division is not maintainable and hence, unlawful.

(c)             Under paragraph (20) of the CTA Form, before filing of a case before the Claim Tribunal, the claimants are required to notify the owner of the vehicle and, in case of non-response or insufficient response, the result has to be mentioned in the claim petition. In the instant case, this did not happen. Therefore, the case is liable to be rejected outright.

(d)            With regard to the accident, none of the PWs has stated anything relating to the averment made in paragraph 6 of the claim petition that the Bus was overtaking a third minibus at a curving/turning point of the road.

(e)             None of the PWs stated that driver Jamir was driving the Bus recklessly or at a high speed. On the contrary, OPW-5 stated that the driver shifted the Bus slowly to the Kancha road to avoid the accident and this statement was not challenged in cross-examination which indicates that the driver of the Bus, Jamir, is not responsible for the accident.

(f)              The license of the Microbus has not been produced in the criminal case or in the instant case.

(g)            All the OPWs produced by opposite-party Nos. 1 to 4 uniformly stated that the driver of the Bus was driving slowly and that the driver of the Microbus was driving recklessly and thus, hit

the Bus causing the accident. So, neither the Bus driver nor the owners/operators of the Bus are responsible for paying any compensation to the petitioners.

(h)            From the statements of PW-1, it is evident that her injury to the right eye was caused by her own son which she has reported to the doctor in USA. Therefore, the evidence of PW-1 Catherine and PW-7 Dr. Niaz Abdur Rahman is not believable on the subsequent claim relating to injuries to her eye or compensation for the purpose of treatment of the eye. The additional claim of compensation is an afterthought for the purpose of getting more compensation from the opposite-parties.

(i)               The petitioners have raised their claims under the MV Ordinance which was promulgated by General Ershad in exercise of the powers under the Proclamation of Martial Law Order of the 24th March, 1982. In the case of Siddique Ahmed vs. Government of Bangladesh and others, reported in 1 Counsel (Spl) (2013), known as and hereinafter referred to as the 7th Amendment Judgment, the Appellate Division declared section 3 of the Constitution (7th Amendment Act) (Act No. 1 of 1986) to be void. In that judgment dated 15th May, 2011, in sub- paragraph (7) of paragraph 152, it has also been declared that the Proclamation of Martial Law itself on 24 March, 1982 and all other Proclamations, Proclamation Orders,

Ordinances, etc. made by Lieutenant General H. M.  Ershad, ndc. psc. from 24.03.1982 till 11.11.1986 are absolutely illegal and void ab

initio.

(j)               Subsequently, a Validation Act was

promulgated by the Parliament, namely,  ১৯৮২

সােলর ২৪ মাচ হইেত ১৯৮৬ সােলর ১১ নেভ র তািরখ পয   সমেয়র মেধ  জারীকৃত কিতপয় অধ ােদশ

কায করকরণ (িবেশষ িবধান) আইন, ২০১৩

(hereinafter referred to as the Validation Act) on 26th February, 2013. Therefore, on the date of

filing of the application before the Tribunal on 13.02.2012 under the MV Ordinance and entertainment of the same were beyond jurisdiction of the Tribunal and also of this Court inasmuch, as the MV Ordinance itself was not legally in existence as decided by the Appellate Division. So, the case, as framed, has no legal backing and liable to be dismissed.

Mr. Ehsan A. Siddiq, the learned Advocate appearing with learned Advocates Mr. Imran A. Siddiq, Dr. Chowdhury Ishrak Ahmed Siddiky and Mr. Mohammad Shishir Manir for opposite- party No. 5, takes us through the written objection/statement filed by Reliance, the statement of OPW-1 deposing for Reliance. Mr. Siddiq contends 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. He next

contends that Reliance, in relation to a third-party claimant, is liable for payment of Tk. 20,000/- for a death, Tk. 10,000/- for serious injuries and maximum Tk. 50,000/- for property damage caused due to road accident. Mr. Siddiq further contends that Reliance has already paid to the Bus owners 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.

In support of his submissions, Mr. Siddiq has relied on the decisions in the following cases:-

(i)               M/S. Sheikhupura Transport Company Limited vs. Northern India Transport Insurance Company, reported in 1971(1) Supreme Court Cases 785.

(ii)            New India Assurance Company Limited vs. Shanti Bai (Smt) and others, reported in (1995) 2 Supreme Court Cases 539.

(iii)         New India Assurance Company Limited vs. C.

M.  Jaya and others, reported in (2002) 2 Supreme Court Cases 278.

Mr. A. Z. M. Fariduzzaman, the learned Advocate for added respondent No. 6 i.e. the Bank, takes us through the written statement filed by the Bank and submits that the Bank is not the owner of the Bus and Md. Jahangir Kabir, Proprietor of Ruhin Motors, is the owner of the Bus and that he had purchased the Bus by taking loan from the Bank. He next submits that the Bus was mortgaged to the Bank with other properties only as a security for the loan given by the Bank. He finally submits that, meanwhile, Md. Jahangir Kabir, Proprietor of Ruhin Motors has repaid the loan of the Bank and that the Bank was never in charge of the Bus. So, the Bank is not responsible for payment of any compensation to the petitioner-claimants. 

Since a very important legal question about the existence of MV Ordinance on the date of filing of the application under section 128 of the MV Ordinance has been raised in this case, Mr. Mahbubey Alam, the learned Attorney General, on our direction, appeared before us with Ms. Israt Jahan, the learned Deputy Attorney General, Ms. Nurun Nahar, Mr. Swarup Kanti Dev and Mr. A. H. M. Ziauddin, the learned Assistant Attorney Generals to address this issue.

Mr. Mahbubey Alam, the learned Attorney General, refers to

the Preamble of 1982 p¡−ml 24 j¡QÑ qC−a 1986 p¡−ml 11 e−iðl fkÑ¿¹ pj−ul j−dÉ S¡l£L«a L¢afu AdÉ¡−cn L¡kÑLlZ (¢h−no ¢hd¡e) AdÉ¡−cn, 2013 (2013 p−el 2 ew AdÉ¡−cn) (hereinafter referred to as Ordinance No. 2

of 2013), particularly, sections 1, 3, 4 and 5 of Ordinance No. 2 of

2013 and the provisions of the Validation Act enacted after expiry of that Ordinance, 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.

On the legal issue about the existence of the MV Ordinance, Dr. Kamal Hossain makes similar submissions as advanced by the learned Attorney General.

Dr. Kamal Hossain further submits that the full text of the 7th Amendment Judgment was available on 22.02.2012 that is after nineteen months of the date of its pronouncement and immediately after the availability of the full text of the judgment, the President promulgated Ordinance No. 2 of 2013 on 22.01.2013 and subsequently, the Parliament enacted the Validation Act with similar provisions. Thus, the MV Ordinance has been validated

from the date of its inception and the petitioners are entitled to get the claimed compensation for the damages under the MV Ordinance.

Discussions, Findings and Decision on the various Issues

Issue No. 2 (court fee)

Let us first decide issue No. 2 i.e. if the court fees paid is

correct.

On this point, the learned Advocate for the opposite-parties did not raise any question. Moreover, during pendency of the case, the petitioners have deposited Tk. 57,500/- along with VAT as the maximum court fees. Therefore, the court fees paid by the petitioners are sufficient. Thus, issue No. 2 is decided in favour of the petitioners.  

Issue No. 3 (Limitation)

This issue has been raised by the learned Advocates for the contending opposite-parties with reference to the fact that the accident took place on 13.08.2011, the claim 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.

The issue of limitation has to be examined and decided in view of the provision of section 128 of the MV Ordinance and the requirement of filing of a claim petition in the CTA Form under rule 220 of the MV Rules. For proper appreciation, section 128 of the MV Ordinance and rules 220 and 221 of the MV Rules are quoted below:-

“section 128. Application for compensation- (1) An application for compensation arising out of an accident for the nature specified in section 127 may be made-

(a)       by the person who has sustained injury or whose property has been damaged; or

(b)      where the death has resulted from the accident, by all of or any of the legal heirs of the deceased; or

(c)       by any agent duly authorized by the person injured or by all or any of the legal heirs of the deceased, as the case may be:

Provided that where all the legal heirs of    the deceased have not joined in any such application for compensation the application shall be made on behalf of or for the benefit of all the legal heirs who have not so joined, shall be impleaded as respondents to the application.

(2)      Every application under sub-section (1)

shall be made to the Claims Tribunal having jurisdiction over the area in which the accident occurred and shall contain such particular as may be prescribed.

(3)  No application for compensation under this

section shall be entertained unless it is made within six months of the occurrence of the accident:

Provided that the Claims Tibunal may entertain the application after expiry of the said period of six months if it is satisfied that the applicant was prevented by sufficient cause from making the application in time.”

(Bold, emphasis given)

“rule  220.  Application for compensation,-(1) An application under section 128 of the Motor Vehicles Ordinance, 1983 (LV of 1983), for payment of compensation shall be made in Form CTA in person or by registered post to the Claims Tribunal having jurisdiction over the area in which the cause of claims has arisen and shall be accompained by a fee of twenty taka in the form of court fee stamp:

Provided that the Claims Tribunal may accept an application under this sub-rule without the fee specified therefor, subject to the condition that in case of an award of compensation in favour of the applicant the fee shall be recovered from the amount of compensation.