' MUNIB AKHTAR, J.---On 4-5-2010, the following issue was framed as a preliminary issue, to be decided first by hearing learned counsel for the parties on the same, since no evidence needed to be recorded for purposes of the said issue:-- "Whether the present suit is barred by Carriage by Air (International Convention) Act, 1966 and the plaint is liable to be rejected?"
2. The facts necessary to dispose of the above issue are stated in para. 4 of the plaint, and these averments must, for purposes of this issue. A be deemed to be true, since the defendant No, 1 seeks rejection of the plaint in terms thereof. These facts are as follows:-- "That accordingly as per schedule the deceased in question Dr.Altaf Hussain boarded along with other passengers on the ill-fated flight PK-668 bearing Pakistan Civil Aviation Registration AP-BAL (hereinafter referred to as " the said aircraft") at Multan Airport at about 1200 Hrs on 10th July, 2006.
The deceased was supposed to depart from Multan to Islamabad to have onward journey to Istanbul (Turkey) from there as an International passenger on his air ticket bearing Number 214- 240 30 57304 issued by the defendant No. 1. The said Aircraft took off from Multan Airport at about 1205 Hrs. In clear weather but shortly after more or less two minutes of taking off and before adequately levelling off and attaining the height/altitude at which the journey was to be performed, the said Aircraft crashed into a field in a ball of flames at Basti Sooraj Mianee on the outskirts of Multan about four-five kilometers away from the airport."
3. Learned counsel for the defendant No, 1, on whom lay the onus of the issue, referred to various provisions of the Carriage by Air (International Convention) Act, 1966 (hereinafter the "1966 Act" or the "said Act"). He submitted that the carriage of the aforesaid deceased Dr. Altaf Hussain by the defendant No, 1 constituted "international carriage" within the meaning of the 1966 Act. His case was that in terms of section 2(3) of the said Act, the liability, if any, of the defendant No,1 lay squarely within the four corners of the said Act, and not otherwise. Any claim under any other provisions of law was not maintainable, particularly a claim under the Fatal Accidents Act, 1855.
Learned counsel submitted that the claim in the plaint was based either on the provisions of the latter Act or the general provisions and principles of law relating to the award of damages to a plaintiff on account of the negligence or other tortious liability of the defendant. In this regard, he referred in particular to paras 24 and .25 of the plaint. He submitted that these claims were not permissible and could not be entertained by the Court on account of the provisions and applicability of the 1966 Act and that therefore, the suit as framed was not maintainable, and the plaint was liable to be rejected. In support of his contentions learned counsel placed reliance on certain case-law, both Pakistani and foreign, which is referred to subsequently.
4. Learned counsel for the plaintiffs accepted that the carriage in question was international carriage within the meaning of the 1966 Act. However, 'he disputed entirely the contention put forward by learned counsel for the defendant No, 1 that the suit was not maintainable and for that reason the plaint was liable to be rejected. He placed reliance on the relevant provisions of the First Schedule to the 1966 Act, and the rules contained therein. Learned counsel submitted that as per the said rules, the liability of a carrier fell into two categories. Rule 22 provided that in any case which resulted (as presently relevant) in the death of a passenger, the liability of the carrier was not to exceed the sum of 250,000 francs, unless a larger amount had been agreed upon between the carrier and the passenger. According to learned counsel, this liability was imposed on the carrier regardless to whether it, or its servants or agents, were at fault or not. Thus, according to learned counsel, Rule 22 provides for a "no-fault" liability, that has to be discharged by a carrier in all circumstances. However, his case was that Rule 25 expressly provided for a situation where the limit imposed by Rule 22 did not apply. This situation was where the death resulted from an act or omission of the carrier (or its servants or agents), which act or omission was done with intent to cause damage or recklessly and with knowledge that death would result. Learned counsel submitted that if Rule 25 were applicable to the facts and circumstances of a given case, then the carrier was liable to pay damages to the plaintiff without the limit imposed by Rule 22, and in such a case the quantum of the damages would be determined in accordance with, or by analogy to, the general provisions that had been developed by the courts for determining the amount of compensation payable. He contended that the facts and circumstances of the present case came within the scope of Rule 25, and the detailed statement of the claim given in para 25 of the plaint was a determination of the amount of damages which were payable by the defendant No, I to the plaintiffs (who, are legal heirs of the aforesaid deceased, Dr. Altaf Hussain). Thus, any references to the Fatal Accidents Act or other provisions of the general law were not because the claim was being made in terms thereof, but rather because such provisions or principles ought (according to learned counsel) be used for determining the damages payable under the 1966 Act. Learned counsel submitted that it would, in the end, of course be for the Court to decide what were the applicable principles relating to the award of damages under the 1966 Act, but he submitted that the suit could not be dismissed simply on account that such references had been made. He therefore, contended that the plaint was not liable to be rejected.
5. I have heard learned counsel for the parties and examined the case-law and other relevant record with their assistance. The determination of the preliminary issue turns entirely on the proper interpretation of the relevant provisions of the 1966 Act. At the same time, it must also be kept in mind that the issue is narrowly focused, and quite rightly so. The issue is limited only to the question whether the suit is barred by reason of the applicability of the Act, 1966 and therefore, the plaint is liable to be rejected on that ground. Since both learned counsel are agreed that the 1966 Act is applicable, I turn to an examination of its relevant provisions.
6. As is clear from its preamble, the 1966 Act was enacted to give effect in Pakistan to the Convention concerning International Carriage by Air, known as the Warsaw Convention, as amended at the Hague in 1955. The convention has been given the force of law in terms of the First Schedule to the Act, 1966. In my view, for present purposes, the crucial provision that requires consideration is section 2(3) of the said Act,- which provides as follows:-- "Notwithstanding anything contained in the Fatal Accidents Act, 1855, or any other law for the time being in force, the rules contained in the First Schedule shall, in all cases to which those rules apply, determine the liability of carrier in respect of the death of a passenger, and the rules contained in the Second Schedule shall determine the persons by whom and for whose benefit and the manner in which such liability may be enforced."
In my view, as presently relevant, the forgoing provision can be regarded as having three aspects.
Firstly, it starts with a non obstante clause, which as rightly pointed out by learned counsel for the defendant No, 1, excludes specifically the application of the Fatal Accidents Act and, more generally, any other law for the time being in force. The second aspect is that it provides that the rules contained in the First Schedule shall determine the liability of the carrier in respect of the death of a passenger carried by it. Thirdly, the rules contained in the Second Schedule shall determine the person by whom, and for whose benefit, and the manner in which, the claim against the carrier in respect of such liability may be enforced. Thus, 1966 Act draws a distinction between the manner of determining the liability of a carrier, and the quantum thereof, which are matters covered by the First Schedule, and the manner in which and the persons by whom and for whose benefit such claim can be made, which come within the ambit of the Second Schedule. In either case of course, the general provisions of the law stand excluded and the matter is to be determined within the four corners of the 1966 Act. However, there is a clear distinction between what is contained in the two Schedules, and this distinction is crucial for purposes of determining the preliminary issue. The First Schedule limits the relief (to which the persons having a claim against the carrier may be entitled) to what is contained in the First Schedule. If therefore, the relief that is actually prayed for is different, either in nature or in quantum, from what is contained in the First Schedule, the suit would ultimately have to be dismissed. However, and this is the crucial point, if at the conclusion of the trial, and on considering the evidence led by the parties, the court concludes that the plaintiff is entitled to relief that comes within the scope of First Schedule, then the court can grant such relief to the plaintiff. In other words, if the relief as prayed for is improperly framed, that in and of itself is not necessarily fatal, and what can happen in such a case is that the court can limit or mound the relief which it grants to the plaintiff to what he is entitled under the First Schedule. However, the plaint ought not be rejected for this reason alone. The submissions made by both the learned counsel for the pardes were focused on this aspect of the matter but that .Is something which, with respect, will have to be considered once the parties have led their evidence, and the question whether the suit is to be dismissed on this basis can only be determined at that stage. It would, in my view, be premature for the suit to be dismissed at this stage merely on this ground. In the present case, the relief sought by the plaintiffs is a money decree in terms as specified in the prayer clause. Whether the amount claimed by them has been correctly computed in terms of the rules laid down in the First Schedule, or falls entirely (or in part) outside the scope of the 1966 Act is a question that will have to be (and can only be) decided at the conclusion of the trial of the suit. The plaintiffs cannot be non-suited for this reason alone.
7. Of course, there may well be certain provisions in the First Schedule which could, if properly invoked or found applicable, result in the plaint being rejected. The most obvious example is Rule 29, which provides for a period of limitation of two years (to be computed in terms as therein stated). If, e.g., the Limitation Act, 1908 provides for a different period of limitation, or a different manner of computing limitation, then those provisions would stand excluded, and Rule 29 would prevail. However, no such provision of the First Schedule has been relied upon and, as noted above, the preliminary issue has been argued in relation to the question of the relief sought by the plaintiffs, and the relief to which they may, if at all, be entitled under the 1966 Act.
8. On the Other -hand, the provisions of the Second Schedule, if not complied with, may well result in the suit being found not to be maintainable, and hence liable to he dismissed as such (or for the plaint to be rejected). The reason is that, as noted above, the rules contained in the Second Schedule shall determine the persons by whom, and for whose benefit, and the manner in which the claim under the 1966 Act is to be enforced. Thus, if the general law makes certain provisions with regard to the persons by whom, or for whose benefit, and/or the manner in which a claim arising out of the death of a person carried by an air carrier is to be brought, and those provisions are different from the ones contained in the Second Schedule, a suit brought in terms of the general law, and not in terms of the provisions of the Second Schedule, would be barred, and hence toe plaint would be liable to be rejected. However no such case has been made. Out or put forward by the defendant No 1.
9. Insofar as the case law and other material relied upon by learned counsel for the parties in relation to the 1966 Act is concerned, that makes for some fascinating reading. However, with respect, that case-law and material is not directly applicable in relation to the preliminary issue, as framed. Learned counsel for the defendant No, 1 strongly relied on the decision of the House of Lords in Sihhu v British Airways (19771 1 All ER 193, and submitted that the view therein taken in respect of the Warsaw Convention, and also in the subsequent case of In re: Deep Vein Thrombosis [20051 UKHL'72, had been adopted not only by the High Court of Australia (in Povey v. Qantas Airways Limited [20051 HCA 33), but also by our Supreme Court in Daoud Sliatni v. Emirates Airlines -PLD 2011 SC 282. However the questions raised in the appeal before the Supreme Court, as also in Sidhu's case and in the decision of the High Court of Australia, were different from the question that requires determination in terms of the preliminary issue. Learned counsel for the plaintiffs referred, in particular, to a single bench decision o[.This Court reported as Dr. Pro. Haroon Ahmed v. British Airways and others PLD 2004 Kar. 439, where the question of damages was extensively examined and analyzed. In my view, these cases will have relevance and become applicable once the parties have led their evidence at the trial, since as noted above, it is only then that the question of the relief, if any, and the quantum thereof, to which the plaintiffs are entitled would arise. The position is similar with regard to the other material (e.g., extracts from text books) relied upon by learned counsel for the parties and it is therefore, with respect, not necessary for me to consider the same in detail for present purposes.
10. In view of what has stated in the forgoing, the preliminary issue framed as above is decided in the negative, in favour of the plaintiffs and against the defendant No. 1.