1. ' SYED PIR ALI SHAH, J.---Both the plaintiffs, who are husband and wife have filed this suit for damages and compensation 100-Millions Dollars against the above named defendants.
2. ' Concise facts of the case are that plaintiff and his wife namely Mah Jabeen were denied boarding at Abu Dhabi by Incharge Gulf Air Lines to board Flight GF-2032 by Madam Ayman Hazeem on 4-11- 2004 about 1900 hours whereby Flight No,GF-2032 for Jeddah proceeded at schedule for which plaintiff and his wife were having boarding cards, who were proceeding to Holy City of Makkah during Holy Month of Ramadan to perform Umrah. It is stated that the legal notice for recovery of 100 Millions dollar damages was served through Advocate Supreme Court of Pakistan Muhammad Iqbal Choudhary and Mrs. Shiraz Iqbal Choudhry to the defendants through TCS No,3002510421 on 23-12-2004. The .Defendants accepted the legal notice without rebuttal after waiting for considerable time (4 months). It is further contended that plaintiffs were granted Visa by the Kingdom of Saudi Arabia to perform Umrah during the month of Ramadan particulars are as under:-- Plaintiff Name Passport No. Visa No. Ticket No. Computer No. Major (R) Abdul Rauf Khan S/o Muhammad YasinKC 364137 Anx- D2310669120 dt.
3. 25-10-2004 Anx.-E072- 4413379587 Amx-FLBFSQH Anx-G Mah Jabeen Begum w/oKB 968239 Anx- H2310669123 dt.25-10-2004072- 4413379586LBFSQH Anx-L Major (R) Abdul Rauf KhanAnx-J Anx-K ' It is also alleged that the plaintiff travelled by GF 751 on 4th November, 2004 at 0745 hours from Quaid-e-Azam International Airport and reached at Abu Dhabi at about 0905 hours on the same day. It is stated that for onward journey to Jeddah Boarding Card for GF -2032 was also issued at Quaide-Azam International Airport Karachi by Gulf Air Lines Staff to the plaintiff. The plaintiffs were kept at Abu Dhabi Airport Lounge and no facility of Hotel to retire was provided. It further alleged that at about 1800 hours on 4th November, 2004 Gulf Air staff announced the passengers having boarding card for Jeddah have been De-Boarded. They are to get Boarding Card afresh for Bahrain. No mention was made about the flight No,GF-2032 whether it had developed technical defect or not bound for Jeddah. It is contended that fresh Boarding Cards were issued for GF-194 meant for Bahrain Gulf Air staff at Abu Dhabi and it was further announced that if passengers want they can go back to Pakistan. The Gulf Air staff started chasing/checking the passenger's Air Tickets/Boarding Card forcibly at Abu Dhabi Airport. Air Tickets/Boarding Cards were snatched from passenger's in this way 37 passengers bound for Jeddah were denied boarding in breach of contract to GF-2032. It is also urged that no sooner the required seats in GF-2032 for Jeddah were made available, the Gulf Air staff announced the departure of GF-2032. Plaintiff again approached the Gulf Air staff for resuming journey to Jeddah by GF-2032, the Air Staff refused to listen any word.
4. It is further alleged that In charge Gulf Air Staff namely Madam Aymen Hazeem replied if you make any hue and cry, you both would be debarred to travel to Jeddah and will be sent back to Pakistan.
5. "Make up your mind where would you like to go". It is stated that plaintiff had gone to perform Umrah in the month of Holy Ramadan and schedule was disrupted by the Gulf Air and plaintiff proceeded to Bahrain by GF-194 under protest/pressure. The GF-194 took off at 2200 hours and reached Bahrain at 2315 hours. The Gulf Air Staff at Bahrain took 2 hours at Bahrain Airport and at 0100 hours on 5-11-2004 took us to Hotel in Bahrain City. On 5-11-2004 at 1000 hours brought us to Bahrain Airport and proceeded to Jeddah by GF-2036 on 5-11-2004. It is further contended that the GF-2036 reached at 1530 hours in the afternoon. In this way two days of Holy month of Ramadan which were to be spent by the plaintiffs in worship in Meca in Khan-e-Kaba were lost in the transit and this irreparable loss to the plaintiff. The loss of Friday Prayer (5-11-2004) was a shock of life that due to Gulf Air staff at Abu Dhabi, the plaintiffs were deprived off the Saadat of the valuable Friday's worship. On 17-11-2004 plaintiff resumed journey to homeland by GF-0472 which was to take off at 1915 hours from Jeddah to Muscat. Plaintiffs were sitting in the aircraft and the aircraft was delayed for two hours. It is also stated that plaintiffs were to take off from Jeddah to Muscat via Abu Dhabi to Karachi. The Aircraft was schedule to reach Karachi at 0500 hours on 18-11-2004 but reached at 1230 hours. It is also contended that plaintiff reached Muscat airport at 0030 hours on 18-11-2004 and were forced to stay in passengers lounge till 0930 hours in chairs. Thus for about 0900 hours stay at Muscat 6 hours in the aircraft from 1830 till 0030 hours resulted into great physical stress on the body/mind of the plaintiff. On account of illegal act of defendants Nos.1 and 2 and their staff at Abu Dhabi denying Boarding. The mental pain and agony of the plaintiffs and aggravated on 4-11- 2004. There was no other remedy/source available to proceed to Mecca for Umrah.
6. ' The plaintiffs have claimed the following special and general damages.
7. Sr. No. Particulars Damages Claimed
1. On 4-11-2004, plaintiff and his wife were proceeding to perform Umrah by Gulf Air Lines, denied boarding at Abu Dhabi Airport by defendants staff the20 millionsU.S. Dollars plaintiff and his wife on transit, at foreign air port sustained serious set back when they can go on further, having all completed documents.
8. Their luggage was with gulf airs suffered, mental shock, agony and torture, thus proved on proof of circumstances, when plaintiff and his wife were not allowed to resume journey, at foreign air port by defendants employees and on account of defendants' negligence.
2. On 4-11-2004, at about 1930 hours deceitfully, on the plea of over booking cancelled the boarding cards of plaintiff and his wife, having boarding cards issued from Quaid- e-Azam International Air Port Karachi. Flight GF-2032 meant for Jeddah, proceed on schedule timing 2020 hours on 4-11-2004. In this way Gulf Air staff off loaded and other 35 passengers belonging to interior of Sindh. The ticket with confirmed reservation when issued, International contract of carriage by air came into existence. Any person who is denied boarding without just cause is bound to suffer mental stress and strain.20 millionU.S. Dollars.
3. Contractual obligation of carrying of air carrier was to carry the passengers to contracted destination on date and time as was specified therein GF-2032, was to carry the10 millionU.S. Dollars. passengers on 4-11-2004 to Jeddah to reach 2030 hours. Route deviated to Bahrain by GF-194 by GF air staff on 5-11-2004 resumed journey from Bahrain at 1230 hours arrived at Jeddah by GF-2036 at 1530 hours. Total delay occurred 17 hours. Mission to perform was Jumat-ul-Wida prayer, during Ramadan which was lost during transit, due to negligence of GF air staff. Suffered religious shock of life. Aim of Umrah during Ramadan was destroyed. By loosing Jumat-ul-Wida.
4. Betrayed the confidence of 37 passengers by GF Air staff bound for Jeddah on 4-11-2004 preferably seat for their own desired persons to provide opportunity to offer prayer for Jumat-ul-Wida in Haram Sharif got vacated.At 1930 hours board for GF-2032 as per scheduled time was displayed. Contacted by the plaintiff and his wife not to deprive them for the Saadat of Jumat-ul-Wida that was on 5-11-2005.
9. Incharge Booking Madam Ayem Hazeem threatened makeup our mind, where would you like to go. If you make hue and cry, I will send you back to Pakistan.
10. Got horrified. There was no other way to go Jeddah.10 millionU.S. Dollars
5. Reached Abu Dhabi on 4- 11-2004 at 0915 hours did not provide hotel/food till 2130 hours by GF air staff.10 millionU.S. Dollars.
11. Kept sitting in passenger lounge, in plastic chair.
12. Thus physical stress and strain, Frustration inconvenience and humiliation.
6. On 4-11-2004, issued fresh boarding card for GF 194 meant for Bahrain, which was not contracted journey. Reached Bahrain at 2315 hours took two hours to clear air port formalities and took us to hotel at about 0100 hours.
13. Food was served at about 0130 hours. It was month of Ramadan and again called for Saheri at 0400 hours. The whole night passed sleepless. The omission of the wrong doer entitles the wronged to be compensated remained hungry for two days 4-5- 2005.10 millionU.S. Dollars.
7. On 17-11-2004, commenced home ward journey. Gulf air staff informed to reach air port Jeddah at 1400 hours. Flight was to take off at 1915, hours. Reached Jeddah air port at 1400 hours GF air staff did not open the gate for check in Forced us to stay in the open sky when temp 40.
14. Opened the gate at 1600 hours. Boarding started at 1830 hours. Passengers were sitting in the flight.
15. Flight took off at 2130 hours.
16. Reached Muscat Air Port at 0030 hours. On 18-11-2005.
17. Connected flight for Karachi missed due to delay caused by the Gulf Air staff stayed at Muscat10 millionU.S. Dollars. air port from 0030 hours to 0930 hours. Gulf Airs staff did not provide hotel/food.
18. Passed sleepless night in great tension/hungry.
8. On issue of summons by High Court GF air staff at Kingdom Bahrain tender written apology for lapse of air services. Conducted investigation as result of disruption air journey offered U.S. 300 dollars, to plaintiff and to wife as compensation added insult to injury.10 millionU.S. Dollars.
19. SPECIAL DAMAGES 1 Cost air ticket for plaintiff/wifeRs.70000
2. Stay at Mecca and Madina SR 200, including food per day from 5-11-2004 to 17- 11-2004- 13 days *200=2600 SR 2600 SR * 16= Rs.41600
3. Misc travelling expense 500=500*16=80008000 Rs.119600 Plaintiffs prayed for judgments and decree in favour of the plaintiffs against the defendants jointly and severally as claimed in para No,26(a) of the plaint as under:--
(1) To declare that the action of defendants Nos.1 and 2 and their persons acting at Abu Dhabi refusing to board the GF-2032 against Tickets Nos.072-4413379586 and 0724413379587.
(2) To declare that on refusal to board GF-2032 bound for Jeddah from Abu Dhabi had deprived the plaintiff and his wife from availing the opportunity to join Jumat-ulWida on 5-11-2004 so incurred religious colossal loss which is unparallel loss caused mental agonies, humiliation and defamation to the plaintiff.
(3) To grant decree for 100 millions Dollars as damages and compensation in favour of plaintiffs against the defendants jointly and severally.
(4) To award costs and any other relief as the Court may deem fit and proper to the plaintiffs and against the defendants jointly and severally under the facts and circumstances of the case with 14% markup from the filing of the Suit.
20. ' Upon notice to the defendants, defendants Nos.1 and 2 had filed their written statement and have denied the contents of the plaint. In preliminary objections it has been pleaded that the alleged cause of action accrued in Abu Dhabi, therefore, cause of action has accrued within the jurisdiction of Abu Dhabi/Bahrain Courts and the case should be filed in those courts. It has denied that the plaintiffs are entitled to recover $ 100 Millions jointly and severally or at all. It is stated that in certain circumstances flights are changed and this is done in terms of contract of travel. It is denied that in breach of contract any passenger was denied boarding. It is contended that Gulf Air Staff did their best to help their passengers in the circumstances of the prevalent situation. It is further contended that no Gulf Air staff would make the alleged remarks and none of the staff did make such remarks and Gulf Air staff did their duties in the circumstances at the time and in accordance with the terms and conditions of Contract of Carriage by air. In the last defendants prayed for dismissal of the suit with special cost.
21. ' From the pleadings of the parties, the following issues were framed:-- ISSUES
(1) Whether the plaintiff and his wife's Boarding passes were cancelled at Abu Dhabi International airport for connected flight GF-2032 meant for Jeddah if yes, its effect?
(2) Whether the plaintiff suffered any loss due to denial of Boarding on GF-2032 on 4-11-2004 by the defendants?
(3) Whether the defendants caused delay to plaintiff and his wife on return journey on 17-11-2004 from Jeddah to Karachi?
(4) Whether the defendant acts aggravated plaintiff, mental agony, pain, tension, frustration, inconvenience and humiliation?
(5) Whether it is an obligation on the part of air carrier to take the passengers on date and time specified in the air tickets?
(6) To what compensation the plaintiff is entitled to?
(7) What should the decree be?
22. ' In support of his case, plaintiff Major (Retd) Abdul Rauf has produced affidavit in evidence as Exh.P.W-1/1. He produced his legal notice dated 30-5-2005 recovery of damages to the tune of Rs,100 Million Dollars against both the defendants as Exh.P.W.1/2, detailed statement dated 1-5-2005 Annexure C as Exh.P.W.1/3, photo stat copy of his Passport Annexure "D" as Exh.P.W.-1/4. Photo stat copy of Visa Annexure "E" as Exh.P.W.1/5, return ticket Annexure "F" as Exh.P.W.1/6, Annexure "G" is the travelling document, which he produced as Exh.P.W.1/7. He produced Annexure G/1 as Exh.P.W.1/8.
23. Annexure "H" is a photo stat copy of passport of his wife Mst. Mahjabeen Begum which he produced as Exh.P.W.1/9. He produced tickets as Exh.P.W.1/10. He also produced Annexure "L", "N" and "L" which are receipts of legal notice as Exh.P.W.1/11. He produced photo stat copies of original CNIC as Ex.P.W.1/12. He also produced Power of Attorney executed by his wife in his favour as Exh.P.W.1/13.
24. ' In rebuttal defendants' side examined D.W.1 Khalid Mehmood, District Reservation and Ticketing Manager as Exh.D.W.
25. 1.
26. ' I have heard oral arguments advanced by both the sides. I have also gone through the oral and documentary evidence Exhibited on record. My findings on the above issues framed in this matter will be as follows:-- ' My findings on the above issues will be as follows:-- Issue No. 1: As under Issue No.2: In affirmative.
27. Issue No.3: In affirmative.
28. Issue No.4: In affirmative.
29. Issue No.5: In affirmative.
30. Issue No.6: As under Issue No.7: Suit of the plaintiffs decreed for payment of one million US Dollars each, which amount shall be paid by the defendants within three months period, and after expiry of three months period they will be liable to pay mark-up at the rate of Rs.
31. 14% per annum.
32. Reasons Issue No, 1.
33. ' The case of the plaintiffs is that their Boarding Passes were cancelled at Abu Dhabi International Airport for connected Flight GF 2032 meant for Jeddah. In support of his case he has produced affidavit in evidence as Exh.P.W.1/1. He produced his legal notice dated 30-5-2005 recovery of damages to the tune of Rs,100 Million Dollars against both the defendants as Exh.P.W.1/2, he also produced detailed statement dated 1-5-2005 annexure C as Exh.P.W/1/3. He also produced photo stat copy of his Passport Annexure "D" as Exh.P.W.-1/4. He also produced photo stat copy Visa Annexure "E" as Exh.P.W.1/5. He also produced returned ticket annexure "F" as Exh.P.W.1/6, Annexure "G" is the travelling document, which he produced as Exh.P.W.1/7. He produced annexure G/1 as Exh.P.W.1/8. Annexure "H" is a photo stat copy of passport of his wife Mst. Mahjabeen Begum which he produced as Exh.P.W.1/9. He produced tickets as Exh.P.W.1/10. He also produced Annexure "L", "N" and "L" which are receipts of legal notice as Exh.P.W. I /11. He produced photo stat copies of original CNIC as Ex.P.W.1/12. He also produced Power of Attorney executed by his wife in his favour as Exh.P.W.1/13.
34. ' In cross examination, he has deposed as under:- "that both the tickets were purchased by him from Serjeel Air Travel, at Karachi. According to him, he had read terms and conditions mentioned on the tickets and also read International Carriage law and relevant section of International convention. He had not taken any money from anybody.
35. He had purchased these tickets for Jeddah. He and his wife had travelled by these tickets. At Abu Dhabi Airport. There were many passengers in transit lounge. It was full aircraft loaded from the Karachi and there were 300 to 400 passengers in the aircraft, who were unloaded at Abu Dhabi airport meant to another airplane for Jeddah. It was month of Ramzan. They had given them very light Aftari at the same time they announced that all those passengers meant for Jeddah airport to check and for getting fresh boarding card and air tickets. We all went to check an counter and they have collected 35 plus passports from them. They issued fresh boarding card for Bahrain but they did not mention about the schedule of aero-plane GF-202 meant for Jeddah. Voluntarily says that following the day was Jumatul Widah and there made available about 37 seats. The 37 passengers sent through charter plane to Bahrain. No other passenger was travelling in aircraft. At 2215 hours on 4-11-2004 flight of Gulf airline of 194 took for Abu Dhabi to Bahrain and reached at 2315 hours, took two hours to clear customs at Bahrain Airport when GF Airline took them at 0200 hours on 5-11- 2004 and there food was served them and at 12 noon they took them at Jeddah by GF 2036 and reached at Jeddah at 1513 hours on 5-1-2004. Due to unjustifiable action of the ground staff at Abu Dhabi airport we were deprived of Saadat of Jumatul Widdah in Haram Shareef He made no travel agent as party. Defendant No,2 was incharge of the check counter and on her direction boarding card for Bahrain was issued. When he contacted her since left of aero plane coming to Jeddah GP 202 please allow us to proceed to Jeddah, she replied if you will make hue and cry he will send you back Pakistan, make-up your mind whether would you like to go back. There was no alternate except to digest deep humiliation and to proceed to Bahrain. It is correct to suggest that she was highly in rash mood and she was not prepared to listen anything, resulting they had to go to Bahrain by force under compulsion. The aim to perform Umrah in Haram was totally defeated. On 5th November, 2004 at 1530 hours. They reached Jeddah by GF-2036 from Bahrain. On our return on 17th November, 2004, they were asked to report at 1400 hours to Jeddah Airport as per given timing. He along with his wife went there. The door of the checking counter was locked. They had to stand in the open sun when the temperature was over 40 degree and there was no place to sit. At 1600 hours on the same day the door was opened and it took two hours to issue boarding card. At 1800 hours they boarded the aero plane meant for Masqat. The return route was Masqat-Jeddah- Abu Dhabi-Karachi, but the aero plane was delayed by GF Airlines and reached Masqat at 0015 hours. Immediately the ground staff gave them boarding cards meant for Karachi, which was to start at 1000 hours on 18th November, 2004. They did not provide them any hotel accommodation nor food. It was plastic chair all over the lawn. There was no place to sit till 0930 hours on 18th November, 2004. They boarded the aero plane and passed sleepless night without food and rest nor any of the staff of GF Airlines contacted them about the return journey, thus, they delayed our flight another about 10 hours and reached Karachi on 18th November, 2004 at about 0130 hours. As per contractual obligations by the GF airlines carried by air international convention at 1966 read with PLD 2004 Karachi page 439, the Gulf Airlines did not fulfil their obligations as settled by the superior Courts of Pakistan, thereby the journey was total failure. On 6th July, 2005 the Gulf Airlines Bahrain Head quarters sent a letter tendering written apology. On 18th July, 2005 they again sent a letter whereby repeating similar thing and offered him and his wife US $ 150 per head which he had already placed on record.
36. ' Defendants examined D.W-1 Khalid Mehmood, District Reservation and Ticketing Manager as Exh.D.W./1. He has deposed as under:-- - "I had not annexed any documents along with his affidavit in evidence. Vol. Said that some documents containing ticket etc. Has separately been filed in Court. It is correct to suggest that I had not filed any authority letter from the company. Vol. Says that it may be with his lawyer. He had no authority letter in writing from Ayman Hazeem defendant No,2. Vol. Says that she is Country Manager. Further, voluntarily says that Ayman Hazeem was not Country Manager but she was posted at the incident. I was not employee of Gulf air. He is not aware about the exact name at present who had signed the written statement. Facts of the case were brief to him by his lawyer."
37. ' In cross-examination conducted by Mr. Abdul Rauf for plaintiff No,1, the said witness has deposed that Ayman Hazeem is male and not female. This information is given to him by his head office. He had not seen the defendant No,2. He is not witness to the incident occurred on 4-9-2004. Affidavit in evidence has been prepared on the basis of the record of the company and not from his personal knowledge. Vol. Says that the Company has its own mechanism and system for the investigation of the area incident. He has denied the suggestion that he has deposed falsely. It is admitted by him that the investigation also carried out by the Company as a result communicated to the plaintiff. He saw letter dated 6th July, 2005 addressed to Mr. Muhammad d Choudhry, Advocate by Manager Customer Relations Gulf Air. He produced the same as Exh.D/2. Original shown from the Court file and retained the same in the Court file and photo copy of the same has been placed in evidence file along with cross examination.
38. ' It has sufficiently come in evidence that on 4-11-2004 plaintiff and his wife proceeded for Umrah by Gulf Airline to Jeddah. Their Boarding passes were issued at Karachi by GF Airline Karachi-Abu Dhabi-Abu Dhabi-Jeddah. Plaintiff and his wife reached Abu-Dhabi at 0905 hours. Connected Flight was scheduled to leave for Jeddah on 4-11-2004 at 2020 hours. GF 2032. It has also come in evidence that at about 1830 hours after Iftar GF Air ground staff announced passenger going to Jeddah by GF 2032 report to check-in counter. GF Air Ground Staff started collecting the boarding passes, air ticket and passport, thus they succeeded to collect documents from 37 passengers. The reason for collection was not told to the passengers, all passengers were standing near the check- in counters. At about 1930 hrs. The flight departure board GF 2032 meant for Jeddah was displayed and proceeded as per schedule. It has further come in evidence that the plaintiffs approached the In charge GF Air Ground Staff Miss. Ahymen Haleem, GF 2032 is going on scheduled why they were off loaded. But she replied very rudely make-up your mind, you want to go for Umrah or should I send you back to Pakistan. She publically insulted, humiliated in front of massive gathering witnessing this scene all passengers got horrified. Fresh Boarding cards for GF 194 for Bahrin were issued for takeoff at 2200 hrs. Reached Bahrain at about 2330 hrs. And plaintiffs were taken to Hotel at Bahrain City at 0130 hrs. On 5-11-2004. Plaintiff was transit passenger no food was provided no Iftars was provided kept all passengers in plastic chair for whole day. On 5-11-2004, plaintiffs were brought to Bahrain airport at about 1000 hrs. Boarded GF 2036, took off 1215 hrs. Reached Jeddah 1530 hrs. Friday Prayer Jumatul Wada was lost due to denial of Boarding by GF Ground Staff. 17-11- 2004 similar delay was caused while on return journey.
39. ' Evidently Boarding Passes issued to the plaintiff and his wife for connected flight GF-2032 meant for Jeddah were cancelled at Abu Dhabi International Airport. The evidence produced by the plaintiffs' side has not been shaken by the defendant side.
40. ' Evidently both the plaintiffs, husband and wife, had booked their seats through Gulf Air Ways from Karachi via Abu Dhabi, Jeddah on 4th November, 2004. It has been stated on oath that the sole purpose for plaintiffs journey towards Saudi Arabia was religious and offered Jumatul Widah on 5th November, 2004 at Holy Mosque Madinatul Munawarah. There is no denial that the plaintiffs being valuable customers of the defendants Air lines were re-boarded at Abu Dhabi forcibly, unduress and as such their boarding cards were cancelled without assigning any cogent and legal grounds.
41. It came in the evidence that schedule connected flight was not cancelled but some other passengers were accommodated/adjusted. Undisputedly, plaintiffs were bona fide ticket holder and they were denied their basic right in contravention of International Carriage Act, 1966.
42. Conclusively it is determined that the plaintiff and his wife boarding passes were cancelled at Abu Dhabi International Airport for connected flight GF 2032 meant for Jeddah and, as such, plaintiffs have rightly sued to the defendants. Issue No,1 is, therefore, decided accordingly.
43. Issues Nos.2, 3, 4 and 5.
44. ' These issues are inter-related and inter-connected and, as such, I propose to discuss these issues jointly.
45. ' Plaintiffs have stated in clear terms that they were not provided basic facility as provided under relevant International Travelling Rules. In such situation, plaintiffs have undoubtedly suffered mental agony and torture, for which they must be legally compensated. Furthermore, plaintiffs were also deprived of their religious purpose of offering prayer of Jumatul Widah prayer at Haramsharif Makka.
46. ' Both the plaintiffs were diverted to Bahrain unnecessarily, of no fault on their part. Defendants Air travelling staff is therefore responsible and liable to pay the damages for not providing basic facility to the plaintiffs. In a rebuttal, defendants have not led any solid piece of evidence to the effect that they had discharged and performed their legal and moral obligation and had provided facilities according to the standard normally of International Air Travelling Rules. It is further came on record that defendants were not provided travelling facility to the plaintiffs on 17-11-2004 and all along time they were waited at Muscat Airport from 0010 hours. All these shows that Gulf Airways failed to provide necessary facility and assistance to its valuable and respectable customers.
47. ' In further cross-examination plaintiff No,1 has stated "it is incorrect to suggest that the defendants had taken them according to contract to Jeddah and return back to Karachi. It is incorrect to suggest that the defendants and their staff showed their courtesy at Abu Dhabi Airport on their way to Bahrain. It is incorrect to suggest that the travel agent was necessary party in the suit and that they had not made him party in the suit deliberately".
48. ' It is essential to reproduce below Rule 22 of the Carriage by Air (International Convention) Act, 1966:--
(1) Statutory wrong ' Death/injury while embarking/disembarking aero plane limit of liability is 250000 France (Euro).
(2) None Statutory wrong ' Limit of liability not be available (PLD 2004 Karachi 439 RP 424).
(3) Deprived of Saaddat of Jumatul Wada Prayer on 5-11-2004.
49. ' Following facts entitles compensation as dictum of law as laid down in PLD 2004 Karachi 439
(a) Denied Boarding
(b) Route deviation
(c) Delay
(d) Breach of contract
(e) Prima facie of evidence issuing of tickets
(I) No passenger can be allowed to travel out of Pakistan without having onward booking
(g) Delay/route deviation caused by GF Air Lines while going on 4-5 Nov.2004 and 14-18 Nov.2004 while coming back.
50. ' In the instant case 37 Seats were created by GF Air at Abu-Dhabi for own interested persons.
51. Plaintiff and his wife along with 35 other passengers were disembark. Boarding cards cancelled new Boarding cards were issued for Bahrain. GF 2034 meant for Jeddah took off as per schedule.
52. ' From plaintiffs side reliance has also been placed on following law citations:--
(b) 1996 CLC 627
(c) PLD 1996 SC 737
(e) 2002 CLC 96
(f) 426 US 290 SC USA Newspaper Dawn SC India
(g) Newspaper dawn High Court Sindh.
53. ' In this suit for damages and compensation to the tune of 100 million US Dollars written statement was signed and filed by Mr. Mario Xavier Ranjithan General Manager of the Company, who was having the power of attorney. It has been held in PLD 1972 SC 25 and PLD 2004 SC 465 that written statement cannot be an exhibit when the person who filed the same being examined in the Court as the statement made in the written statement is not on oath.
54. ' In view of my finding on Issue No,1 it has become crystal clear that both the plaintiffs suffered mental agony, pain, tension, frustration,, inconvenience and humiliation on account of denial of boarding of GF-2032 on 4-11-2004 by the defendants and delay caused to them on return journey from Jeddah to Karachi on 17-11-2004. Although, the plaintiff was cross-examined sufficiently but learned counsel for the defendants failed to extract anything in favour of the defendants or even succeeded in shaking plaintiffs' evidence. Of course, plaintiffs have categorically and specifically made claim of 20 million US Dollars on account of defendants negligence; 20 million US on account of mental stress and strain; 10 million US Dollars on account of losing Jumat-ul-Wida; 10 million US Dollars on account of not found any other way to go Jeddah; 10 million US Dollars on account of physical stress and strain, frustration, inconvenience and humiliation; 10 million US Dollars on account of omission of remaining hungry for two days; 10 million Dollars due to connected flight for Karachi missed due to delay caused by the gulf air staff stayed at Muscat air port from 0030 hours to 09300 hours and for not providing hotel/food, passed sleepless night in great tension/ hungry; and, 10 million Dollars on account of conducted investigation as result of disruption air journey offered US 300 Dollars, to plaintiff and to wife as compensation added insult to injury totalling 100 million Dollars. But the facts remains that lucrative damages have to be proved by way of necessary documentary as well as oral evidence. In the instant case documentary evidence produced on record is to the effect that plaintiffs had travelled through Gulf Airways and during their stay over at Abu Dhabi they were humiliated and mishandled. In such a situation damages, if any, can be assessed tentatively without measuring the same in the air. Because question arises as to why 100 million US $ only and why not 200,300,400,500 US $ and so on upwards. As such, to the extent of 100 million US $ is not much so far the respect of a person/human is concerned. To my mind it will be appropriate that the plaintiff may be awarded damages/compensation for such an act on the part of the defendants to the tune of one million $ to each of the plaintiff by the defendants jointly. In their letters dated 6th July and 18th July, defendants have not denied their liabilities and responsibilities, on the contrary they have admitted their guilt and apologized and offered a sum of 250 US $ per head, which is mockery and does not serve the purpose. There is simple version of the defendant's General Manager 'that the plaintiffs were provided requisite facility. Although, plaintiffs have categorically stated and claimed an amount of Rupees one hundred Million. But considering the peculiar circumstances of the case, it is deemed just, proper and due to mental agony caused to each of the plaintiffs (husband and wife) they are entitled for payment of one million U.S. Dollars each, which amount shall be paid by the defendants within three months period, and after expiry of three months period they will be liable to pay mark-up at the rate of Rs,14% per annum. Issues Nos.2, 3, 4 and 5 are decided in affirmative.
55. Issue No,6.
56. ' From the above discussion and my findings on Issue Nos.1 to 5, it is concluded that the defendants are liable to pay compensation/damages to each of the plaintiffs on account of poor service of their airline. In PLD 2004 Karachi 439, it has been held that the ticket with confirmed reservation when issued, international contract of carriage by air came into existence. When a confirmed ticket is issued it imposed a duty and obligation on the air carrier to carry the holder of a ticket to the contracted destination on the date and time as was specified therein. It has also been held that any person who is boarding, without just cause is bound to suffer financial loss, inconvenience and humiliation. The passenger who is denied boarding and is wronged is entitled to be compensated for consequential loss suffered on account of denied boarding and provisions of Section 73 of the Contract Act, 1872, is applicable. It may be mentioned here that the credit goes to the plaintiffs who have come forward to knock the door of this Court while lodging such claim against the defendants, else, public at large though suffering day by day and experiencing such foul-play on the part of Gulf Airline have no moral boost-up or legal acquaintance to bother to approach the Court for such a relief. The Gulf Airline should improve its services towards its customers/clients/passengers in accordance with International Air Travelling Rules. In the peculiar circumstances of the case suit of the plaintiffs is accordingly decreed for the US $ one million which should be paid to each of the plaintiffs individually by the defendants within the period of 90 days from the day of this order and in case of delay they will be liable to pay 14% mark-up after expiry of 90 days stipulated period fixed in the matter.
57. Issue No,7 ' In the light of my discussion, reasoning and findings on Issues Nos.1 to 6 the suit of the plaintiffs is decreed to the effect that the action of defendants Nos.1 and 2 their persons acting at Abu Dhabi refusing to board the GF-2032 against Ticket No,72-4413379586 and 072-4413379587 bound for Jeddah are illegal and mala fide it is also declared that on refusal to board GF-2032 bound for Jeddah from Abu Dhabi had deprived the plaintiff and his wife from availing the opportunity to join Jumat-ul-Wada on 5-11-2004 so incurred religious colossal loss which is unparallel loss caused mental agonies, humiliation and defamation to the plaintiffs.
58. ' Accordingly, the suit of the plaintiffs is decreed for one million US $ as damages and compensation to each of the plaintiffs to be paid by the defendants jointly and severally within a stipulated period of 90 days. In case the decretal amount of one million US $ is not paid by the defendants jointly and severally within aforesaid prescribed time period the plaintiffs will be entitled for 14% mark-up till realization of the decretal amount. Cost of the suit may be borne by the defendants jointly and severally.