Road accident: Is it a demon
Khan Khalid Adnan
In the recent days, one of the most talked topics is what can we do to make our road a safe place where death will not be an every day occurrence. In particular, what can legally be done to prevent death caused by negligent/dangerous driving? Rather than addressing the issue as to what the law should look like, many of us are expressing our dissatisfaction with the present sentencing in this area which, many of us are arguing, is inadequate. While feelings do play a vital part in our sociological life, the legal approaches should stay above all sorts of feelings and emotion with a view that the law should not only ensure that justice has been done to the victim, but also ensure that the criminal/defendant gets the legal protection at the same time.
The present law, in this regard, is contained in section 304B of the Penal Code which states: “Whoever causes the death of any person by rash or negligent driving of any vehicle or riding on any public way not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.” The interesting expressions in this law are “not amounting to culpable homicide” and thus a thorough reading of the law would show us that the punishment of maximum three years' imprisonment is only available only when the death caused by negligent driving will not amount to culpable homicide as defined in section 299, Penal Code. Three questions arise in this context which are equally interesting: (1) Can culpable homicide be committed by negligent driving? (2) What element is required for there to be culpable homicide in this context? and (3) What punishment is available if death caused by negligent driving indeed amounts to culpable homicide? Firstly, section 304B clearly suggests, by way of its literal interpretation, that the answer to the first question can be yes. Secondly, intention as to causing death or bodily injury is required for there to be a culpable homicide. And finally, the punishment for culpable homicide amounting murder is death or life imprisonment and fine (section 302). This conclusion based on the literal and contextual interpretation of section 304B, thus, suggests that death sentence is also available if the death caused by negligent driving amounts to culpable homicide. But again, the plain reading of section 304B shows that the nature of driving with which the death must be caused must be rash or negligent as a result of which the element of intention/knowledge is absent from the statutory context of this section. Therefore, a strong argument remains that culpable homicide can never be committed under this section and as such the maximum available punishment is three years' imprisonment irrespective of the degree of blameworthiness of the offence committed.
The alarming rate of dreadful road traffic accidents may have increased due to certain reasons: lack of political concern, lack of accountability of the relevant ministers and governmental bodies, incompetent drivers, inadequate punishment etc. In the absence of comprehensive statutory definition and exemplary punishments, section 304B is clearly in need of reform and parliament should adopt necessary measures in this regard as by no means the concern in this area can be overlooked and neglected. The Crown Prosecution Service (UK) has stated that it is important for the courts to stress the message as to the dangers that can result from dangerous driving on the road. Motor vehicles can be lethal if not driven properly and this being so, drivers must know that as a result of their driving dangerously, if a person is killed, no mater what the mitigating circumstances are, normally a custodial sentence would be imposed. The British parliament has taken the issue seriously which is reflected in the Road Traffic Act 1988 (RTA) that has provided the maximum punishment of 14 years' imprisonment for death caused by dangerous driving. On top of that the RTA defines what constitutes dangerous driving in a comprehensive form. There are other provisions for causing death by careless driving when under the influence of drink or drugs; causing death by careless, or inconsiderate, driving etc. The laws of the US are also strict when it comes to vehicular homicide. The laws of different states, including that of California and Georgia, have divided vehicular homicide at different degrees. In Georgia, attempting to flee from a law enforcement officer after the commission of the offence would in itself make it a first degree vehicular homicide. The laws of Louisiana provides for 2 to 30 years' imprisonment. The interesting features of legislation of well known jurisdiction in this area undoubtedly reveal their concern for death caused by dangerous driving and fatal road accidents.
After addressing the issue of criminal punishment and need for proper legislative construction, possible civil liability also requires some consideration. This is equally important as the deceased victim can be the only wage earner of his family in which case civil compensation rather than criminal punishment would do justice to the victim's family. Usually such cause of action in this area lies under the tort of negligence but unfortunately the law of tort is remarkably underdeveloped in Bangladesh. Even the Indian legal system has significantly developed this area of law for the sake of ensuring justice to its citizens. Moreover, the tort of vicarious liability providing liability for the employers for the wrong-doing of their employees is also a good civil cause of action by virtue of which victim's family can recover adequate compensation from the employer. Though the fact remains that these civil principles are unfortunately underdeveloped in our domestic legal system, this is not the case that these sorts of case have never been brought before the court. Development of knowledge and understanding in this area among the legal professionals will surely enhance the opportunities of the victim's family to avail effective civil compensation for their loss.
An evaluation of our domestic laws shows that special laws regarding drugs, arms, explosives, acid, domestic violence, rape etc have had their significant impact in reducing those crimes in the society even if those laws have sometimes been misused by individuals and executive authorities. Whenever a problem becomes a national concern, it is for parliament to effectively address the situation by responding timely. It is clear that some exemplary punishments will make the drivers on the road more attentive and responsible towards their duties which will obviously be beneficial for the community. The present law is undoubtedly vague and unsatisfactory. The sentencing issue along with the definition of the offence of negligent/dangerous driving should properly be addressed with comprehensive statutes. There should also be appropriate guidelines helping the professionals to understand the implications of the new laws, if enacted. Attention should be given to the laws of other jurisdiction in this area which are working quite satisfactorily. We do not want the incidents of road accidents to take away more valuable lives. As it is not a natural disaster, the control of it is in our hands. The question is whether our policy makers are concerned enough to remedy the situation before some more lives are taken away by this demon called 'road accident.' And it should not also be forgotten that this demon does not operate by itself as in most cases the dangerous/careless driving by drivers is the operative cause of such road accidents that should strictly be brought within the control of comprehensive legislation.
The writer is Barrister-at-Law (Lincoln's Inn).