' Plaintiffs 1 and 2 are the parents of Muhammad Sajjad Mir who, as averred in the plaint, was one of the passengers on a Fokker F-27 flight in its flight from Rawalpindi to Lahore which crashed at Rawat on 6th August 1970, resulting in the death of Muhammad Sajjad Mir (hereinafter called the deceased). Plaintiffs 3 and 4 are the grandparents while plaintiffs 5 and 6 are the brothers and plaintiffs 7 and 8 are the sisters of the deceased. All the plaintiffs are adults.
' The plaintiffs have brought suit for damages allegedly sustained by them by reason of death of Muhammad Sajjad Mir and have claimed a sum of Rs, 55,000 as damages.
' According to the plaintiffs the deceased was only 19 years of age and in good health when he died in the crash. It is averred in the plaint that the deceased had started earning Rs, 500 per month which he was contributing to the family welfare. It is also stated in the plaint that plaintiffs 2, 5 and 6 were partners of the deceased who was managing a factory in Lahore which was manufacturing carpets and because of his death the factory as well as the plaintiffs sustained enormous losses.
According to the plaintiffs' estimates they suffered damage to the extent of Rs, 2 lacs, but they confined their claim to only Rs, 55,000.
' In the written statement the defendants have not admitted the claim of the plaintiffs but have admitted the death of Muhammad Sajjad Mir in the air crash in the manner as stated in the plaint.
They however, did not admit the relationship of the plaintiffs with the deceased and denied that the plaintiffs suffered damage as alleged or otherwise. They also denied the age of the deceased and also the claim that he is earning Rs, 500 per month.
' On the pleadings of the parties following consent issues were filed which were adopted by Mr. Justice Ghulam Rasul Shaikh on 17th December 1973.
I. Whether the plaintiffs are the legal heirs of the deceased Muhammad Sajjad Mir ?
(2) Whether the plane crashed due to rashness, negligence, negligence and carelessness of the defendants ?
(3) What was the age and income of the deceased at the time of the death and whether his income was likely to increase and whether he was expected to survive till the age of 70 years ?
(4) Whether the deceased was the partner of the plaintiffs Nos. 2, 5,
6. If so, was he in control of the entire Management of the business and;
(5) Whether the deceased was holding any personal luggage and cash at the time of his death ? If so of what amount ?
(5-A) Whether the deceased contributed Rs, 500 per month towards the welfare of the plaintiffs ?
(6) Whether the plaintiffs have suffered any loss due to the death of the deceased ? If so to what was extent ?
(7) Whether defendants are liable to pay compensation to the plaintiffs? If the finding is in the affirmative then the next issue will be ?
(8)Is the liability of the defendants limited under law ? If so, to what extent.
(9)What the decree, if any, should be ?
' The plaintiffs in support of their case have examined Sardar Mir Khwaja plaintiff 1 who is the father of the deceased. He inter alia stated that at the time of death the deceased was managing a Carpet Factory in Lahore and his share in the profit in the factory which was owned by a partnership firm was Rs, 400 to Rs, 600 per month and he used to pass on entire income to the entire family. He further stated that in the reply to the questionaire (Exh. 8) he had mentioned that none of the heirs were dependent on the deceased, but he explained that he did so, so at that time he was sad and had not consulted any lawyer and bad not asked any members of the family before answering the questionaire. He also stated that plaintiffs 2, 5 and 6 alongwith the deceased were partners in the firm running Mir Carpet Factory having the following shares :- ' Deceased................ 20% ' Plaintiff 2............. ..30% ' Plaintiff 5............... 30% ' Plaintiff 6. ............. 20% ' He also stated that the plaintiff 6 was living out of Pakistan and that plaintiff 5 was doing carpet business independently and give Rs, 500 or Rs, 600 plaintiff 2 for maintenance of the family. He also stated that plaintiff 6 did not support the mother and other sisters as he has got his own family and that plaintiffs 7 and 8 were already married and lived with their husbands.
' In cross-examination he stated that he was independently manufacturing carpets and his income was Rs, 50,000 to Rs, 60,000 yearly and his share in the profit was 50% thereof. He further admitted that he was living in Karachi when his son died in air crash and that the deceased had a house to live in Lahore which was rented by him. He also stated that the deceased used to stay in the house alone. He stated that the income of the deceased was Rs, 400 to Rs, 500 per month he could not say whether the deceased used to give entire income to his mother although he has stated in the examination-in-chief to the contrary. According to him the deceased used to give money to his mother but he could not say how much. In answer to the question put by the Court he has stated that his age was 56 or 58 years at the time of the death of his son and his wife age was 42 or 43 at that time and that the income of the factory in which his son was partner was Rs, 25,000 to Rs, 30,000 yearly.
' The plaintiff also examined Khwaja Mohammad Amin (Exh. 14) who deposed that he knew the deceased who was manufacturing carpets in a factory at Lahore and the factory was closed by plaintiff 1 after the death of the deceased and that the factory was run by the deceased alone. He could not give any estimate of the income of the deceased. In cross-examination he admitted that he knew Ghulam Abbas, plaintiff 5 who on the date of the cross-examination was doing business.
He could not say if plaintiff was running the same factory which was being run by the deceased because the factory was in Lahore and he had no personal knowledge. In fact this witness admitted that whatever he had deposed about the running of the factory by the deceased he deposed on the basis of talks in trade circles.
' Besides the parties produced 8 documents which were brought on record by their consent marked as Exhs. 5 to 12. Out of these documents 5 documents consist of correspondence between the parties the sixth document (Exh. 8) is the questionaire which I may reproduce herein-below in extenso "Please find enclosed the Questionnaire only answered. I hope my claim will be settled at your earliest.
' Questionnaire ' Answers ' No,
1. MOHAMMAD SAJJAD MIR
2. He studied in the college for two years and appeared in the Intermediate examination but could not get through as he failed in one subject. He had great aptitude for business so he left studies and joined business.
3. 11-5-1970.
4. Not applicable.
5. He was a partner in the firm namely "Mir Carpet Industries" His share of gross earning was Rs, 3,714.20 in 1967, Rs, 4,2283 in 1968, Rs, 5,839.11 in 1969, and Rs, 6,775 in 1970 shown in the Income Tax Returns already submitted.
6. About 400 to 500.
7. Excellent.
8. Nil.
9. At the time of his unfortunate death he bad acquired the necessary experience and skill of the carpet industry. As he acquired experience he took control of the entire management independently by himself unaided by anybody. He was extremely hard working attending his work with fortitude and foresight continuously for 15 to 16 hours a day and seven days a week. This very fact is verifiable. Had he lived his earning capacity would have been considerably increased as he had great potentialities of growing into a great industrialist and businessman. He had plans to enlarge the industry manifold.
10. Sardar Mir Khwaja, 6 Md. Abdullah Md. Ahmed Mansion, near Saeed Manzil Banaress Street, Karachi-B.
11. Father. {{TABLE}}
(1) Sardar Mir Khwaja, father.
(2) Masuda Begum, mother.
(3) Ghulam Abbas Mir, brother.
(4) Ilyas Mir, brother.
(5) Mahera Qureshi, sister.
(6) Shahnaz Begum, sister.
13. (a) None of the heirs were dependent on the deceased.
(b) No,
(c) Own business.
(d) Not applicable.
14. None.
15. Wearing apparels Rs, 2,500 Wrist watch Rs, 700 Camera about Rs, 1,000 Cash on person Rs, 800.
(estimate)
16. Rs, 50,000 (fifty thousand)
' Yours faithfully, {{TABLE}} (Sd.) Sardar Mir Khwaja, father of Mohammad Sajjad Mir."
' Out of the remaining 2 documents one is the photostat copy of the passenger ticket (Exh. 11) and the other is a specimen of the air ticket. There are two other documents brought on record in evidence of the witnesses. One is the questionaire (Exh. 13/2) and the other is Power of Attorney (Exh. 13/1). The power of attorney was executed by the other plaintiffs in favour of plaintiff No, 1.
' I have heard Mr. Khalid Hamid, Advocate on behalf of plaintiff and Mr. Saleem Akhtar on behalf of the defendants and have read the evidence and examined the documents brought on record and my decision on the issues is as follows :- ' Issue No, 1 : ' The plaintiff 1 in his deposition has given the names of the legal heirs of the deceased they are same as given in the plaint as well as in the reply to the questionaire (Exh. 8). It is not now disputed by Mr. Saleem Akhtar that plaintiffs are the legal heirs of the deceased Mohammad Sajjad Mir. It is also not claimed that there are any other heirs of the deceased. I therefore, hold that the plaintiffs are the legal heirs of the deceased.
' Issue No, 2 : This issue is not pressed by Mr. Saleem Akhtar for the reasons that it is immaterial for the purposes of award of compensation whether the plane crashed due to rashness, negligence or carelessness, of the defendants or otherwise. There is however, no evidence that the plane crashed due rashness, negligence or carelessness of the defendants.
' I decide the issue accordingly. Issues Nos. 3 and 4 ' The plaintiff 1 stated in his deposition that the deceased was of the age of 19 or 20 years at the time of his death which is more or less same age as stated in paragraph 6 of the plaint. Although the plaintiffs have not produced the best evidence which would be school leaving certificate or birth certificate yet I accept the same as from the evidence of the above-mentioned witness it appears that deceased had already obtained passport and he was student of the Sind Medical College who had issued an identity card to him two years before his death as nothing to the contrary has been brought on the record.
' As regards the income of the deceased according to plaintiff he was earning Rs, 400 to Rs, 500. To a Court question the witness stated that the income of the factory in which deceased was a partner was Rs, 25,000 to Rs, 30,000 per year. Since the share of the deceased was 20% in the income of the factory, the claim that the deceased's income was Rs, 400 to Rs, 500 per month can be true. The statement of this witness finds support from the statement made in reply to question No, 5 in the questionaire which is as follows :- "He was a partner in the firm namely 'Mir Carpet Industries'. His share of gross earning was Rs, 3,714.20 in 1967, Rs, 22,283, in 1968, Rs, 5,839.11 in '1969 and Rs, 6,778 in 1970 shown in the Income Tax Returns already submitted."
' Above statement was made on the basis of the Income tax returns of the firm by the name of Mir Carpet Industry in which the deceased was a partner. Mr. Saleem Akhtar submitted that plaintiffs have not produced the account books and the income-tax returns on which the reply to the questionnaire was based. However, if the deceased was managing the factory which claim appears to be true, he must be earning Rs, 400 to Rs, 500 per month. I therefore, hold that the deceased was of the age of 19 years at the time of death and was earning Rs, 400 to Rs, 500 per month and was a partner of plaintiffs 2, 5 and 6 in the firm known as Mir Carpet Industry.
' Issue No 5 : ' There is no documentary or oral evidence on this issue. However, Mr. Khalid Hameed referred to the particular contained in column No, 15 in the reply to the questionnaire (Exh. 8) and argued that at least plaintiffs are entitled to the amounts mentioned in this column. The articles mentioned in this column are wearing apparels a wrist watch, a camera and cash on the person of the deceased. The value of the articles given in the said column is Rs, 2,500, Rs, 700 and Rs, 1,000 respectively and the amount of cash is Rs, 800 Mr. Khalid Hameed submitted that this document has come on record by consent and has not been questioned by the defendants and therefore, he argued that the plaintiffs are entitled to these amounts, but the plaintiff in his deposition, has said not one word about these articles as to how he knew that the deceased was carrying these articles with him or on his person. In the absence of sufficient evidence and proof that the deceased was carrying these articles with him or on his person and their value it is not possible to accept the claim on account of the said articles. Mr. Khalid Hameed further submitted that the deceased was wearing some clothes and therefore some amount must be allowed but it is not known that what kind of the clothes he was wearing and what was their value. The burden on this issue was on the plaintiffs and they failed to discharge the same. It was further submitted by Mr. Khalid Hameed that the deceased must have carried some luggage with him but again there is no evidence that the deceased did not carry any luggage with him and there is no presumption in law or otherwise that the deceased must have carried some luggage with him. It is quite possible that the deceased might have gone without any luggage. Mr. Khalid Hameed submitted that plaintiffs could not produce the luggage tags as the same were destroyed in air crash. It is true if the deceased was carrying any luggage with him the tags might have been destroyed but then it was open to the plaintiffs to summons the records of the defendants to prove if the deceased in fact had carried any luggage with him or should have given a notice to the defendants to produce the same, but neither any record was summoned from the defendants nor was admittedly any notice served on the defendants to produce the same. In these circumstances, I decide this issue against the plaintiffs.
' Issue No, 8 : ' Under the Carriage by Air Act 1934 by virtue of clause 22 of Schedule I to the said Act as amended by Notification No, S. R.
0. 295 (K)/62 dated 14th March, 1962, the maximum liability of the carrier in the carriage of passenger in respect of injury, including injury resulting in the death to any passenger is limited to the sum of Rs, 39,500 and in respect of destruction or loss or damage to luggage the liability is limited to the sum of Rs, 40 per lb. As regards objects of which the passenger takes the charge himself, the liability of the carrier in respect of destruction, loss or damage is limited to Rs, 1,700 per passenger. I hold accordingly.
' Issues Nos. 5-A, 6,7 and 9 : ' The plaintiffs' claim in the suit is that the deceased used to earn Rs, 500 per month which he used to contribute to the family welfare. P. W. 1 Sardar Mir Khawaja in his examination-in-chief has stated that the deceased share in the profit of the firm which was running Mir Carpet Factory was Rs, 400 to Rs, 600 per month. He used to pass on the entire amount to the entire family. It is in his evidence that plaintiffs 5 and 6 were the brothers of the deceased had independent source of income at the relevant time. It is also in his evidence that the two sisters, plaintiffs 7 and 8 were already married and were living with their husbands. Plaintiff 1 himself was doing business and his share in the profits of the firm in which he was a partner was Rs, 25,000 to Rs, 30,000 yearly. Nothing was said in the evidence about the plaintiffs 3 and 4. Therefore, there remains the question whether the mother has sustained any damage on account of death of the deceased.
' The learned counsel for the plaintiffs argued that it was satisfactorily C established by the evidence of P. W. 1 that the deceased was giving Rs, 500 to Rs, 600 to his mother for the maintenance of the entire family. No doubt the P. W. 1 has stated so, but in cross-examination he could not say whether deceased used to give his entire income to his mother or not. According to the witness the deceased used to give money to his mother. However, it is in his evidence that the mother was a partner with the deceased in Mir Carpet Factory at Lahore and the share of the mother in the profits of the firm was 30% while share of the deceased in the profits of the firm was 20%. It is also in evidence that the income of the firm in which the deceased and his mother besides others were partners was Rs, 25,000 to Rs, 30,000 yearly that is, approximately Rs, 2,000 to Rs, 2,500 monthly, and thus the share of the deceased in the profit was Rs, 400 to Rs, 500 and the share of the mother was Rs, 600 to Rs, 750 monthly. If the deceased was giving any money to his mother this must be on account of her share in the profits of the firm and not by way of her maintenance. It is also in evidence of P. W. 1 that the deceased was maintaining a separate house in Lahore and living separately from the other members of the family and since his income according to the witness himself was about Rs, 400 to Rs, 500 per month, be must he spending this money on himself and must not be contributing any amount out of his earning for the maintenance of his mother, plaintiff 2. This conclusion finds support from the statement contained in the reply to questionnaire (Exh. 8) wherein P. W. 1 has stated that none of the members of the family was dependent on the income of the deceased. Of course, the witness tried to explain that he had made this statement in the reply without consulting the other members of the family, before answering the questionnaire, but I am not prepared to accept the same because the mother of the deceased had her own independent source of income and D the father was also earning Rs, 25,000 to Rs, 30,000 per year. If she required any support it would have come from her husband not from the son. I am therefore, of the view that the plaintiff 2 has not sustained any damage, Accordingly I hold none of the plaintiffs is entitled to an compensation.
' In the result I dismiss the suit with costs.