MAHMOOD AHMED KHAN, J.---This is a suit for recovery of damages/compensation.
2. The version of the plaintiff summarize to the required facts is that plaintiffs 1 is the widow, plaintiff No,2 is the adult son whereas the plaintiffs 3 and 4 are the minor son and daughter of the deceased Dr. Altaf Hussain, who died on account of Fokker Friendship Aircraft crash accident on 10.07.2006 due to willful misconduct reckless carelessness and gross composite negligence of the defendants. That the defendant No,1 is doing the aviation business in Pakistan as national flag carrier/national airline, running commercial flight operations for reward, representing itself of having the fleet of perfectly maintained/monitored and airworthy Aircrafts with skilled and competent pilots and offered the use of its fleet of Aircrafts for domestic as well as international flight services on commercial basis, continued under Pakistan International Airlines Act, 1956. The defendant No,2 is the statutory authority and a body corporate created and established under Section 3 of Pakistan Civil Aviation Authority Ordinance, 1982 [Ordinance XXX of 1982] for the promotion, control and regulation of civil aviation and to develop an infrastructure for safe, efficient, adequate, economical and properly coordinated civil air. transport services in Pakistan by exercising their powers and functions contained in the said Ordinance.
3. That as per schedule the deceased boarded along with other passengers on the ill-fated flight PK-668 bearing Pakistan Civil Aviation Registration AP-BAL, at Multan Airport at about 1200 hours on 10.07.2006 and was supposed to depart from Multan to Islamabad to have onward journey to Istanbul (Turkey) from there on his air ticket bearing No,214-2403057304 also issued by defendant No,l. After two minutes of taking off the said Aircraft crashed into a field in a bail flames at Basti Sooraj Mianee on the outskirts of Multan about 4/5 kilometer away from the Airport. A fire broke out after the crash and all bodies were charred beyond recognition and it was discovered that all the 45 passengers and crew members were found to have died on board including the deceased. The dead bodies of the victims got scattered throughout the area where the crash took place and corpses were taken to Nishtar Hospital Multan, where postmortems of all the deceased passengers were conducted and thereafter dead bodies were handed over to the legal heirs after identification for onward burial including that of the deceased. That the plaintiffs came to know through the daily newspapers about the version of the accident, which was reported in the media that the said aircraft tried to land in the field after developing an apparent technical fault, but due to flying at the low altitude at the time it struck against the high voltage electric wire strung across the field which burnt even the plants at the place of crash. Defendant No,2 Civil Aviation Authority
(CAA) constituted an Accident. Investigation Board to carry out statutory probe into the crash of the said Aircraft. The said enquiry has been concluded, but at no stage the plaintiffs or their representative were called to be associated with the inquiry proceedings. That the defendants are withholding the findings including the record and proceedings of the said inquiry without any bona fide and justifiable reasons. That on the basis of representations made by experts and press reports in this regard that said Aircraft crash might have taken place due to high temperature coupled with high excessive cargo which must have caused the engine failure. It is also stated that defendant No 2 apart from defendant No, 1 is also guilty of non-feasane, misfeasance and malfeasance. That defendant No,2 absolutely neglected and failed to move the concerns- authorities to relocate either the HT wires or to place streamers on the wires which is a mandatory requirement under the Rules. Defendant No,2 also failed to ensure through its skilled and competent operation engineering personnel that airline operators like defendant No, 1 in the instant case are not flying over loaded airplanes and also that all electrical and other necessary equipment fitted in the airplanes function properly and such safety measures are managed by surprise and random inspections which was not done in the said aircraft. Defendant No,2 also failed to keep the landing and radar monitoring system in proper order as there was no checking of radar monitoring system and landing guidance system overdue. That quality of the flight checking and declaration of the airworthiness of the aircraft by the officials of the defendant No,2 was also questionable and was not reliable as the said officials responsible for such declaration lacked required qualifications for want of necessary flying training and as such if defendant No,2 would have thoroughly examined the airworthiness of the said aircraft in diligent manner, they would have managed to ground the said Fokker Aircraft in view of the past experience and history of faults in the said Aircraft. The FSD of defendant No,2 is responsible for ensuring flight safety compliance by all Aircraft in Pakistan Airlines by supervising plot training and quality control by defendant No, 1 and also inspection of airlines to ensure that airlines do not apply any short cuts to safe flying practice and do not compromise on the operational engineering aspects. That it is impossible to compensate the plaintiffs/legal heirs for the death of the deceased brought about by the sheer negligence and inefficiency of the defendants. The defendants should and are bound, however, under law to pay for their fault and for the irresponsible manner in which they ran their enterprises. That the deceased was a well-known psychiatrist at Bahawal Victoria Hospital Bahawalpur and posted as Assistant Professor and Head of Department, as such the plaintiffs have been deprived of the same and expected pecuniary benefits to an extent of Rs,159,091,976/-. The deceased was aged 47 years having robust health and used to care much for the plaintiffs and wanted to see them in a prosperous state. The plaintiffs are entitled for the cost of personal baggage including personal assets amount to Rs,8000/-, wrist watch Rado valuing Rs,22,000/-, mobile cell phone valuing Rs,12,000/- cash US $ 1600 (Pak Rs,97,600/- totaling sum of Rs,139,600/- which is also recoverable from the defendants being compensation. The losses of pecuniary benefits/ advantages which the plaintiffs had been deprived on account of negligence of defendants are assessed and evaluated on account of principles enunciated by the Superior Courts arising out of a claims under the Fatal Accidents Act, 1855 and while non-pecuniary benefits have been assessed on the premises of Common Law of Torts and other ancillary law available and applicable in such circumstances.
The Plaintiff as such made out a statement of claim as under: STATEMENT OF CLAIM
1. Average life span in view of preponderance of Judicial Pronouncements70 years 2.Age of deceased at the time of death 47 years 3.Expected loss to the legal heirs/ plaintiffs for the remaining expected life of the deceased i,e, (70-47)23 years 4. Loss of pecuniary benefits at the rate of Rs, 19246/- per months (inclusive of pensioner), benefits) upto age of superannuation (60 years) on account of monthly salary (13 years) (19,246 x 12 x 13)Rs,30,02,376/00 5.Loss of pecuniary benefits at the rate of Rs,420,000/- per months based on private Practice for daily 35 patients at Rs, 400 per Patient for 23 years Sub TotalRs, 11,59,20,000/00 Rs, 11,89,22,376/00.
6.ADD 20% increase on account of chances of Increment in the aggregate income (Rs, 300,2376/00+11, 59, 20,000 = 118922376 x 20%)
Gross Sub TotalRs, 2,37,84,475/00 Rs, 14,27,06,851/00 7.LESS Deduction 1/6th amount on account of Personal expenses(-) Rs,2,37,84,475/00 8.Net Loss of Pecuniary Benefits Rs, 14,27,06,851/- 23,78,475=Rs,1,89,22,376 (balance)Rs,11,89,22,376/ 00 9.FURTHER ADD Damages/Compensation on account of Professional calling, social position and loss of social capital by the aggrieved dependentsRs, 1,00,00,000/00 10.Damages in favour of widow/ plaintiff No, 1 For loss of association and lonelinessRs, 50,00,000/00 11.Damages in favour children (plaintiff Nos, 2 to .4) due to death Of their father resulting into loss of fatherly education, guidance, supervision, comforter and position in society Rs,50,00,000/00 eachRs, 1,50,00,000/00 12.Aggregate damages on account of nervous Shock and trauma suffered by the, plaintiffsRs, 50,00,000/00 13.Damages on account of personal baggage Including personal effects Rs,8,000/-, writs Watch RADO Rs, 22,000/-, mobile cell phone Rs, 12,000/- cash US$ 1,600/= (Rs,97,600/00)Rs, 1,39,600/00 14.Funeral Expenses Total Sum Claimed Rs, 30,000/00 Rs, 15,40,91,976/00.
Hence the plaintiffs filed this suit with the following prayers; a) A decree in the sum of Rs,154,091,976/- against the defendants jointly and severally to pay the said sum of damages/ compensation to the plaintiff or any other amount this Honourable Court may deem fit in circumstances of the case. b) Profit/markup at the rate of 21% per annum on of amount claimed in Clause (a) above from the date of the filing of the suit till the date of realization of the decretal amount which the plaintiff would have earned had the defendants paid the said amount. c) Cost of the suit may be awarded to the plaintiffs. d) Any other relief or reliefs that this Honourable Court may deem just and proper under the circumstances of the case be granted.
4. Defendant No,1 filed written statement objected to the proceedings on the ground that the plaintiffs admitted that their suit represents claims under Fatal Accidents Act, 1855 and the Common Law of Torts whereas the documents attached to the plaint confirm their awareness and knowledge of the Warsaw Convention as the applicable law, as such the suit is barred under the Carriage by Air (International Convention) Act, 1966. It is alleged that the deceased was survived by his mother, namely, Mst. Zainab Khatoon, who died almost nine months after the said accident, as such she was a legal heir of the deceased passenger having 1/6th share, and is herself survived by at least two sons, namely, Abdul Razzaq Ahmed son of Maula Bakhsh and Shafiq-ur-Rehman son of Maula Bukhsh and possibly other. children including daughters, but the plaintiffs have willfully concealed this important fact possibly with a view to monopolizing the damages claimed. It is admitted by defendant No,1 that deceased was an international passenger and his travel was regulated by the Warsaw Convention as amended at The Hague, which is applicable law in Pakistan. It is further stated that there was no lack of required maintenance or checkup of the aircraft, which was serviceable, airworthy and maintained according to applicable rules and regulations, as all pre-flight checks of the aircraft were carried out by the Aircraft Maintenance Engineers duly licensed for this purpose and a number of pre-flight checks were carried out by the Cockpit Crew, as such any violation as alleged of pre-flight inspection regulations is a malicious and sinister allegation. It is further stated that flight and duty times of the pilots are specified by defendant No,1 and regulated by defendant No,2 and there is no possibility that any airline can wrongfully compel its pilots to fly beyond the prescribed flight and duty time limitation. Defendant No,1 has denied all the allegations including the allegation of actionable wrong. It is, also denied that the plaintiffs are entitled to a claim of Rs,154,091,976/- from the defendants. Defendant No,1 prayed for dismissal of the suit.
5. Defendant No,2 also filed written statement and also objected to the proceedings on the ground that the suit is barred under the Carriage by Air (International Convention) Act, 1966. It is stated that application of scientific techniques of investigation, the eye-witnesses were also examined and the plaintiffs who were neither specialists nor the eyewitnesses, they were not involved in the process of investigation. The assertions of the plaintiffs that the aircraft while flying entangled with H.T. wires is contrary to the factually position as the flight path of the aircraft was absolutely clear of obstructions at the climb gradient. Defendant No,2 submitted that allegations made in the plaint against defendant No,2 are baseless and false, as such are denied and prayed for dismissal of the suit.
6. Issues-in the matter were framed on 06.12.2012 as following:-- 1.Whether the suit is maintainable under the Fatal Accidents Act, 1855 and Common Law of Torts?
2. Whether the legal heirs of Mst. Zainab Khatoon wife of Mr. Maula Bakhsh are legal heirs of Dr. Altaf Hussain? If so, what are their respective shares?
3. Whether the death of the deceased Dr. Altaf Hussain aged 47 years was caused on account of the FOKKER Friendship Aircraft crash accident on 10.07.2006 due to negligence of defendants, if so, its effect?
4. Whether the defendant No,1 was guilty of an act or omission done with intent to cause damage or recklessly and with knowledge that damage would probably result?
5. Whether the plaintiffs are also entitled to 'No Fault Liability' amount as admissible under Sections 17 and 22 of First Schedule of Carriage of Air (International Convention) Act, 1966?
6. Whether the defendants are liable jointly and severally to pay compensation to the plaintiff, if so, to what extent ?
7. What should the decree be ?
7. The plaintiffs examined their attorney PW-1 Abdul Razzak, his affidavit-in-evidence was taken on record as 'O/1', he produced photocopies of air ticket as Ex.P-5/2, postmortem report dated 10.07.2006 as Ex.P-5/3, entry of register of deaths of UC No,3 as 'O/2', letter of Mr. Shafiqur Rahman brother of deceased dated 20.07.2006 as Ex.P-5/4, reminder letter dated 11.11.2006 Ex.P-5/5, certificate of Bachelor of Medical and Bachelor of Surgery issued to the deceased as Ex.P-5/6, Medical Registration Certificate of the deceased as Ex.P-5/7, degree of FCPS of the deceased Ex.P- 5/8, letter dated 30.04.2006 'O/3', order of posting of the deceased dated 08.04.2006 is 'O/4', certificate of experience dated 26.07.2006 as 'O/5', 'certificate dated 18.05.1993 to 14.06.1993 as 'O/6', letter dated 18.05.2006 as Ex.P-5/9, certificate as 'O/7', certificate of participation as 'O/8', another certificate as 'O/9', certificate of participation as 'O/10', letter dated 22.05.2006 as Ex.P-5/10, application as 'O/11', order dated 07.07.2006 as 'O/12, salary slip of the deceased as 'O/13', certificate as 'O/14', death certificate of Mst. Zainab Khatoon as 'O/15'. Plaintiffs also examined P.W.2 Dr. Muhammad Abdul Raziq son of Abdul Khaliq and Nasir Javed son of Saeed Ahmed.
5. Defendant No,1 examined DW-1 Martin Miles Mathews son of Wilfard, Senior Aircraft Surveyor, who produced his affidavit-inevidence as Ex:D/1, Letter of Authority dated 19.11.2013 as Ex:D/2, Resolution as Ex:D/3. Defendants, also examined D.W.2 Mansoor Ahmed Khan son of Sami Ullah Khan, Aeronautical Engineer, who produced his affidavit-in-evidence as Ex:DW/2, Letter of Authority as Ex:DW/3, Copy of Resolution as Ex:DW/4 and copy of written statement in Suit No,812/2007 as Ex:DW/5. Defendants also examined DW.3 Captain Tariq Khoso, who produced his affidavit-hi- evidence as Ex:DW/3, copy of Authority letter dated 06.02.2014 as Ex:DW/4.
The said witnesses were cross examined by the other sides.
9. Learned Counsel for the plaintiff contends that the issue as to the maintainability already stands decided by order dated 27-5-2011 by treating the same as a preliminary issue on the application under Order VII, Rule 11, C.P.C. filed by the defendant No,1 by the findings in negative which has not been assailed as such it has attained finality. That as to the issue No,2 it is contended that it is unnecessarily framed however in case the mother of the deceased is found entitled, as she has since expired the 1/6th amounts available to her may be ordered to be distributed for the benefit of her legal heirs as tarka names of which are Given in the written arguments. The Rule 2 of second schedule of the Act, 1966 requires representation of the passenger by any person for benefit of the all as coming in the category of members classified therein. The same being a matter of non- joinder is not fatal to the plaintiff's suit. For the issues Nos,3 and 4 the evidence is relied upon contending that the portions not being challenged are liable to be entertained as such it is proved that the deceased was a renowned psychiatrist, the defendant No,1 being an international air carrier is liable to pay no fault liability, PIA District Officer Multan having offered in an intimidating and humiliating manner a sum of Rs,500,000/- to 2,000,000/-. That the defendant in any case is liable to pay 260,000:- Gold Francs to the families of each international passenger who died in the accident. That the defendants are duty bound to pay statutory compensation under "contract of carriage" and for this purpose insurance is made under Rule 199 of CAA Rules. That the crash of the aircraft took place because one of its two engines was not working. The deceased was drawing salary of 13,500 from government and the said salary has since increased 11 times along with his running the private clinic. That the onus of proof in respect of omission and recklessness is present with the defendants on account of Rules of the First schedule and a further reference is made to Article 119 of the Qanun-e-Shahadat Order, 1984, a case of special knowledge has been claimed in this regard. The evidence as brought up by the defendant has also been referred, claiming the same to-be without the required material. In this regard evidence as led by the defendants has also been relied upon specifically where one of the defendant witness admit the "crash of the Fokker aircraft took place after failure of its right engine. It is correct to suggest that the pilot came to know about engine failure while the aircraft was still on ground. It is correct to suggest that, the pilot had clear indication of .danger before takeoff". It is as such contended that the case of the plaintiff falls within the ambit of rule 25 of the first schedule whereby the limit/restriction as imposed by rule 22 (i) is not applicable as the pilot having clear indication of danger before take- off preferred for the same. It is further contended that required certificate of air worthiness and service is mandated by Rules 16, 17, Sub-rule (2) of Rules 18, 27, 27(g), 27(b) and 33 of Civil Aviation Authority Rule, 1994 has failed to be brought forward by the defendant No,l. Reference has been made to Rules 23(2), 165, 219, 220 and 225 contending that the pilot has failed to comply to the same. The investigation report has also been discussed and portions attributing faults and defects have been relied upon. Definition/s of the words recklessness and negligence has been relied upon.
As to no fault liability it is claimed that that plaintiffs are entitled to amounts specified under Rules 17 and 22 of the first schedule of the Act, 1966 accordingly for loss of death and baggage. It is as such contended that as death being the maximum injury the whole amount of 260,000/- francs as provided in rule 22(1) is payable and rule 23(1) is relied in support as the same is restricting lower limit. That the plaintiff is also entitled to amounts as may be available under rule 25 wherein no limit is prescribed. As to the liability of the defendants jointly and severally for payment of compensation it is conceded that no liability is made out against defendant No,2 however as the liability of defendant No,1 the evidence is relied upon and it is further contended that the said defendant is liable to the quantum of compensation as referred earlier and considering the economic worth of the deceased to the plaintiff claimed in paragraph 26 of the plaint and in any case compensation cannot be less than current value of Gold-Franc 260000/- [260000 x 65.5 mgs of Gold] worked out on the basis of value of Gold on the date when the judgment is passed in addition to 21% markup from the date of filing of the suit till realization. being a contractual liability not honored. That the defendants has not taken the defense of "all necessary measures" and the report of crash has been relied claiming the same also establishes that that the crash was caused due to death on account of negligence and recklessness of the pilot. It is further contended that as the claim of the plaintiff that the deceased was earning Rs,420000/- per month has gone un- challenged the pecuniary loss comes to Rs,11,59,20,000/-, the same being quite realistic. The plaintiff also claims economic worth of the deceased and in this regard his having the position of Assistant Professor of Psychiatry at a medical Collage at Bahawalpur and having private practice while not taking non-practicing allowance and his monthly income brought up by two witnesses. It is further contended that another victim of the crash. Late Mr.Ejaz Ahmed belonging to Bunglow- Chawan District Kabeerwala being a Pakistani-Canadian National also travelling as an International Passenger to Canada was pad US Dollars 1.5 Million by way of out of court settlement on the claim of his wife namely Mrs. Mariannes Martines (Tel No, +011519-253-1814) living at 1713, California Avenue Windsor Ontario N9B 3T5 Canada and hefty amounts as such stood paid to his two brothers and three sisters in Kabeerwala has not been denied in the counter affidavit filed in this regard. That the claim of the plaintiff is covered by insurance as is required in mandatory form despite which the defendant No,1 wrongly protecting the interest of the insurance company has preferred not to entertain the claim of the plaintiffs. He has also relied upon the judgments 2016 YLR page 1832 (Jehanzeb Khan v. Government of Kyber Pakhtunkhwa through Chief Secretary and 14 others),, 2016 CLC 1936 (Hazoor Bakhsh and 2 others v. Mir Nasrullah Khan), 2016 PTD page 622 (Muhammad Hussain and others v. Pakistan the Secretary Revenue Division and others), 2009 YLR page 1408 (Abdullah through L.Rs and others v. Muhammad Ibrahim), PLD 1986 Supreme Court page 35 (Samar Gul v. Central Government and others), PLD 2003 Supreme Court page 102 (Muhammad Gulshan Khan v. Secretary, Establishment Division, Islamabad and others), PLD 2003 Karachi page 495 (Clifton and Defence Traders Welfare Association through General Secretary v.
President, Clifton Cantonment Board Karachi and 4 others), 1983 CLC page 2054 Adam Hussain and another v. Muhammad Ayub), PLD 1995 Karachi page 603 (Mrs. Hajra Begum and 2 others v.
Aga Khan Hospital, Karachi), 2008 MLD page 1310 (Mureed Fatima and 2 others v. Home Secretary, Government of Sindh, Karachi and others), PLD 2011 Supreme Court page 296 (Hafiz Tassaduq Hussain v. Lal Khatoon and others), PLD 2015 Supreme Court page 187 (Farzand Ali and another v.
Khuda Bakhsh and others), PLD 2004 Supreme Court page 682 (Chief Engineer, Irrigation Department, NWFP Peshawar and 2 others v. Mazhar Hussain and 2 others), Australia Court of Appeal (SS. Pharmaceutical Co. Ltd. and another v. Qantas Airways Ltd) , Morris V KLM Royal Dutch Airlines (2001) EWCA Civ 790, PLD 1960 (W.P.) Karachi page 712 (Ursulina D'Lima and others v. Orient Airways Limited and another), 2000 SCMR page 1305 (Maulana Nurul Haq v. Ibrahim Khdlil), PLD 1978 SC (AJ&K) page 118 (Maj. Shujait Ali v. Mst. Surraya Begum) in support of his contentions.
10. On the other hand learned counsel for the defendant No,1 has referred to the Montreal convention and the Warsaw conventions, the applicable Act of 1966 and so also the subsequent Act of 2012 and to the French Francs and its conversion as practiced in different countries and SDR Value given thereto. It is contended that the claim of damages has to be substantiated by cogent and material proof. He has raised objection to the plaintiff herself has not appeared and that only a sum of Rs,13,000/- has been shown as income of the deceased. It is further contended that the suit as framed is not maintainable on account of failure of fulfilling the requirement of succession certificate and impleading of all the legal heirs being fatal as the same are required by the applicable law. That the accident at best may be called a matter of negligence, the same however cannot be said be based upon criminal negligence and that the recklessness as alleged has to be proved by way of evidence as the staff managing the airplane was having experience and it cannot be reasonably thought that they caused the accident themselves as they were present in the plane and eventually died in the accident. He has also relied upon the judgments of Sidhu and others v. British Airways plc, Abnett (known as Sykes) v. British Airways plc. International Air law, 2013 SCMR page 507 (Malik Gul Muhammad Awan v. Federation of Paksitan through Secretary Wo Finance and others), PLD 2002 Karachi page 434 (Riaz-ur-Rehman Khan v. Lufthansa German Airlines, Quaid-e-Azam International Airport, Karachi), 2009 YLR 1914 (Syed Moinuddin v. Abdul Rehman Khan and others), PLD 2003 Lahore page 358 (Messrs Emirates Airline v. Daoud Shami and others), PLD 2011. Karachi page 514 (Dr. Naheed Fatima and 3 others v. Messrs Pakistan International Air Corporation (PIAC) through Chairman and another), PLD 2011 Supreme Court page 282 (Daoud Shami v. Messrs Emirates Air Lines and another) 2008 YLR (Karachi) page 206 (Echo West International (Pvt.) Ltd. v. Pakland Cement Ltd.), 2008 CLC page 418 (Anwer Hussain Surya v.
Sumair Builders through partners), PLD 1996 Supreme Court page 737 (Sufi Muhammad Ishaque v.
The Metropolitan Corporation Lahore through Mayor), 2000 CLC page 215 (Federation of Pakistan v.
Messrs AlFarooq Flour Mills Ltd.), 2008 CLC page 965 (Messrs Klb-e-Hyder and Company (Pvt.) Ltd. through Chief Executive v. National Bank of Pakistan through President and 3 others), 2007 CLC page 1964 (Aftab Hussain v. Sohail Yousuf) in support of his contentions.
11. Learned counsel for the defendant No,2 challenged the maintainability of the proceedings and further contended that under the Carriage by Air (international Convention) Act, 1996 the defendant No,2 is not a party as the said defendant is not covered by the same. That the suit as filed as not maintainable have been filed under the provisions of fatal accident Act, the same is in violation of the specific provision as provided in the special law also requiring succession certificate which is not present. That a presumption as to the liability of the carrier is rebuttable under rule 20. That rule 22 provides the maximum liability whereas the plaintiff has failed to prove entitlement under rule 25. The sitting with a physiatrist requiring 30 minute the calculation of private practice cannot be entertained as such the evidence as to income is not reasonable. The French Francs conversion is not to be made into gold as the decree is given in Pakistan rupees. The Non-obstante clause present in sub-rule (3) of Rule 2 requires that that the special, law be treated accordingly and the suit filed under Fatal Accidents Act, 1855 be dismissed as not available. He has also relied upon the judgments 2015 SCMR page 1406 (National Logistic Cell v. Irfan Khan and others), PLD 1967 Karachi page 775 (Shaikh Muhammad Yunus v. PIA), 1988 CLC page 2325 (Shahjehan Be gum v. Govt. of Sindh and other), 2003 PLC (C.S.) page 1277 Supreme Court (Saadat Pervaz. Sayan v. Chief Secretary, Government of Punjab, Lahore and 3 others), (1997) 2 LRC page 149 (Sidhu and others v. British Airways plc), (1986) 2 All ER(sic) (Swiss Bank Corp and others v. Brink's MAT Ltd and others), (2002)2 All ER page 565 (Morris v. KLM Royal Dutch Airlines), (2015) 4 LRC page 324 (Thibodeau and another v. Air Canada), (2014) UKSC page 15 (Stott v. Thomas Cook Tour Operators Ltd.), 2013 PLC (C.S.) page 1076 (Muhammad Mohsin Ghuman and 6 others v. Govt. of Punjab through. Home Secretary Lahore and others) in support of his contentions.
12. In rebuttal it is contended the suit of the plaintiff is not filed under the Fatal Accidents Act and the law of Torts but also under the Act of 1966 and that the question of maintainability has already been decided. That the non-appearance of the plaintiff is not fatal as the attorney of the plaintiff withdrew the affidavit-in-Evidence of the plaintiff No,1 on the understanding that the defendant No,1 shall not raise any objection to subsequent stage for nonappearance of the lady plaintiff so specified in the commissioners report second paragraph. That the SDR value as is being relied upon for conversion of French Francs is not proper as the same amounts to lesser value and was not ratified by Pakistan.
13. Having heard the learned counsel and gone through the record, before I continue any further I would like to recast the issues give my findings thereto and thereafter the same are discussed; 1.Whether the suit is maintainable?...Already decided by order dated 27-5-2011, irrespectively further discussed as affirmative.
2. Whether the legal heirs of Late Dr. Altaf Hussain are entitled to damages on account of his death by way of a no fault liability under Section 17 or under Section 25 of the First Schedule of Carriage by Air (International Convention) Act, 1966? If so to what amount and with what distribution?
Affirmative and as discussed.
3. What should the decree be ?............... Suit Decreed as discussed.
14. Issue No,1; Whether the suit is maintainable? Although substantially this issue already stands decided by order dated 27. 5.2011, framed therein as "Whether the present suit is barred by carriage by Air (International Convention) Act, 1966 and the plaint is liable to be rejected?" to which the said order has already given a finding of negative. The same has since also attained finality having not been appealed from, irrespectively it is felt required on account of the present stage being the final and so also considering the present framing of this issue that one other element be taken up for discussion as has been brought up and not specifically discussed earlier, being that of "the requirement of succession certificate". The requirement of succession certificate arises naturally once the amount has been ascertained and quantified i,e, existence of tangible asset as such is, required. In the present matter the parties not having agreed to any amount the requirement of succession certificate `which is otherwise not found to be fatal has not yet been achieved. The said requirement not being of a fatal nature is also called upon to be so considered by rule 5(2) of the Second Schedule Carriage by Air (International Convention) Act, 1966 stating: SECOND SCHEDULE [See Section 2(3)1 PROVISIONS AS TO LIABILITY OF CARRIERS IN THE EVENT OF THE DEATH OF A PASSENGER
5. (2) Where an application under sub-rule (1) is not accompanied by a certificate under rule 6, the carrier shall advise the applicant to obtain such certificate.
(Underlining for emphasis by me)
15. It may further be observed that the purpose of the succession certificate apart from ascertaining the legal heirs is to specify and ensure there entitlement. This exercise indulged by this court makes the requirement of succession certificate to be of a duplicate exercise and nature. The applicable special law specifically nowhere disentitles the legal heirs of their rights in absence of the succession certificate as such their rights cannot be denied and it is held that it absence is not fatal to the suit in the present proceedings. The reference to a wrong law even otherwise does not affect the relief/entitlement which is to be decided on the merits and not the technicalities. This issue stands determined in affirmative at this final stage also.
16. Issue No,2. Whether the legal heirs of Late Dr. Altaf Hussain are entitled to damages on account of his death in the accident by way of a no fault liability, under Section 17 or under Section 22 of Carriage by Air (International Convention) Act, 1966? If so to what amount and with what distribution? The onus to prove the nonexistence of liability especially caused on account of the accident not having been denied in presence of the language of Rule 20 of the Carriage by Air (International Convention) Act, 1966, Article 122 of the Qanun-e-Shahadat Order, the concept of no fault liability, rests with the defendant No,
1. The special B law of Carriage by Air (International Convention) Act, 1966 as to the onus describes the liability to be treated under Rule 20.
Rule 20 provides; "The carrier is not liable if he proves that he and his servants or agents have taken all necessary measures to avoid the damage or that it was impossible for him or them to take such measures."
(Underlining and bold for emphasis by me)
17. The said rule shifts the burden of proof on to the defendant No,1 being the airline. The element of proof and liability is further considerable as according to the version of the parties it is an admitted position that the said defendant being the airline was having complete control. The non-presence of any other version of the incident i,e, any third party or external element causing the accident, as such the only deductive conclusion arising from the death of Late Dr. Altaf Hussain is that the same has been caused on account of the said accident on account of failure of the defendant No,1 to ensure a safe flight. This aspect is also supported and further clarified by the report of the defendant No,2 in this regard. The result is an affirmative finding to this portion of the issue also.
18. Another element left for discussion is whether the claim of the legal heirs is to be limited to the sum of two hundred and fifty thousand francs as provided under section 22 or the same crosses the limit thereof and comes within the ambit of unlimited claim as provided under section 25 for which the said defendant No,1 is liable as it is so naturally desired on part of the said defendant to offer the same for this Court to believe in such an existence.
The relevant sections of Carriage by Air (International Convention) Act, 1966, 17, 20, 22 and 25 provide;
17. The carrier is liable for damages sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustain took place on board the aircraft or in the course of any of the operations of embarking or disembarking.
20. The carrier is not liable if he proves that he and his servants or agents have taken all necessary measures to avoid the damage or that it was impossible for him or them to take such measures.
22. (1) In the carriage of persons the liability of the carrier for each passenger is limited to the sum of two hundred and fifty thousand francs. Where, in accordance with the law of the Court seized of the case, damages may be awarded in the form of periodical payments, the equivalent capital value of the said payments shall not exceed two hundred and fifty thousand francs. Nevertheless; by special contract, the carrier and the passenger may agree to a higher limit of liability.
(5) The sums mentioned in francs in this rule shall be deemed to refer to refer to a currency unit consisting of sixty-five and a half milligrams of gold of millesimal fines nine hundred. These sums may be converted into national currencies other than gold shall, in case of judicial proceedings, be made according to the gold value of such currencies at the date of the judgment.
25. The limits of liability specified in rule 22 shall not apply if it is proved that the damage resulted from an act or omission of the carrier, his servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that, in the case of such act or omission of a servant or agent it is also proved that he was acting within the scope of his employment.
19. The claim as made in the plaint is in the form as normally made in the cases of fatal accidents acts. The same is not entirely irrelevant being now a well-established formation of calculating damages in similar cases especially causing death but for the present case the same has to be limited to the prescribed limits of the present special law being "damages sustained in the event of the death" (provided under Rule 17 quoted above). The claim has been made on the basis of average life span of the deceased based upon his income claimed as salary and of his private practice. The same is though disputed by the defendant No,1, however in my humble understanding the effect of special law is that the onus to disprove the same shifts to the other side, which otherwise in the normal circumstances rests with the one alleging the same under Articles 117 and 118 of the Qanun-e-Shahadat Order, 1984, the same as such falls within the ambit of Article 119 providing as under;
119. Burden of proof as to particular fact: The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law, that the proof of that fact shall lie on any particular person.
(Underlining for emphasis by me)
20. The cumulative effect in my humble understanding is that in a case under the Carriage by Air (International Convention) Act, 1966 the claimant only has to bring up his/their case and the onus of proof in this regard rests with the airline to disprove the same. This shall be to the extent and what is within the prescribed limit of two hundred and fifty thousand francs (As provided in rule 22) where applicable as well as under rule 25 for an ultimate loss if the airline is not able to prove anything in adversity. It is also observed that the special law does not provide availability to the airline to contest and challenge the claim other then as provided under Rule 20, which stand the present defendant No,1 has not preferred to take for the obvious reason/s. It may be observed that in the present case the relaxation of the limit as provided under Rule 25 is also found available as the defendant No,1 has neither come up with its own version of the accident nor the report of the defendant No,2 has been challenged, the legal heirs as such are entitlement to claim the following; The deceased having died at the age of 47 years, with an average of span of life of 70 years the plaintiffs suffered a loss of financial support for 23 years. The deceased was having salaried income of Rs,13,402/- and from private practice a sum of Rs,420,000/- per month as such a monthly income and an yearly income of Rs, 13,402 + 420,000 = 433,402 x 12 = Rs,5,200,824/-. For the period of 23 years the same comes to (5,200,824 x 23 Rs,119,618,952/-). The income may have gone up in due course of time however on account of the reservation discussed herein the same is not allowed. 1/6th thereof being Rs,19,936,492/- is deducted on account of personal expenses of the deceased leaving a balance of Rs,99,682,450/-. No deduction on the age of superannuation has been made on account of the profession of the deceased and his pensioner benefits. The claims of damages/compensation on account of professional calling, social position, loss of social capital by the aggrieved dependents, loss of association and loneliness for plaintiff No,1 and for the children due to death of their father for loss of fatherly education, guidance, supervision, comforter and position in society along with aggregate damages on account of nervous shock and trauma suffered are however denied not coming within the required ambit.
21. The defendants have objected to the claim of the plaintiff as to the private practice which definitely on the face of it is not in proportion to his salary income, and a question of reasonability may well be taken up, especially as to why would the deceased not prefer to continue with the private practice for the time spend on the government job (the difference between the two is about 31 times). On the other hand it is observed that the deceased was not claiming non- practicing allowance as such the private practice cannot be put to question entirely, the quantum as has been objected and has been put to cross-examination however the onus remained with the said defendant (as discussed above) the said defendant No,1 has not brought any cogent evidence in disproving the same despite although a referring to the income tax department in the pleadings has been made but it has not been preferred to bring forward any material by even making an attempt to summon the record from the income tax department. The witness on the other hand had given details to the extent of time of the deceased given to patients etc. in their evidence, as such although it was difficult to believe however in absence of any adverse material no recourse is left but to allow the same as a reduction by a discretionary exercise making the amount reasonable take the same away from being based upon the evidence as brought forward.
The funeral expenses of Rs,30,000/- is also allowed.
22. The legal heirs are also entitled for losses of personal baggage as claimed which is claimed Including personal effects Rs,8,000/-, wrist watch RADO. Rs,22,000/-, mobile cell phone. Rs,12,000/- , cash US$ 1,600/- (Rs,97,600/00) totalling to Rs,1,39,600/-. The same prima facie being less than five thousand francs [As provided under Rule 22(3)] is also allowed.
23. As to the manner of distribution no material has come forward in the evidence that there was any other person except the plaintiffs dependent on the deceased and as such can claim any loss.
The matter of the mother of the deceased though is present, however as it has not come forward during the proceedings that she was dependent on the deceased, the grant of amount as given here not coming within the ambit of "Tarka" she is not included in the beneficiaries. For the distribution of the amounts awarded between the plaintiffs I find no restraint in the use the Islamic principle of distribution of inheritance which in my humble understanding is based on nature principles whereby finances in our society are utilized as such losses are caused in their absence however the girl child shall have the status equally as it a matter of losses and not of social responsibility being not actually a "Takra", the same is ordered accordingly. This issue as such is decided in affirmative for grant of damages as discussed in the sum of Rs,99,712,460/- for loss on account of death and luggage in the sum of Rs,1,39,600/- to be disburse between the plaintiffs in accordance with the Islamic principles of inheritance while treating the girl child as equal to the son treating then as only entitled for the said amounts.
24. Issue No,3. What should the decree be? Learned counsel for the plaintiff desires that the amount be treated by the gold stand as provided in the law whereas the defendant No,1 has referred to the practice of SDR (special drawing rights defined by the International Monetary Fund) being practiced in many countries, the same however cannot be applied for conversion of French Francs as the same is not supported by the applicable law the prayers of suit having been made in Pakistan Rupees this question is not present in this suit, as such is decreed for Rs,99,822,060/- (Rupees ninety-nine million eight hundred and twenty two thousand sixty only). The said amount as claimed and liable to be paid in Pakistan Rupees as prayed no question of conversion of French Franks even otherwise is made out. The plaintiffs are also entitled to a profit/markup on Rs, 20 lacks from the date of death of the deceased till the date of decree at the normal banking rate (The defendant No,1 having acted in violation of decent manners and required civil conduct at the proper time although being legally covered by not disbursing the said amount as was disbursed to the other passengers, attempting to force the plaintiffs to accept the same as complete discharge of liability) and thereafter on at the said amount as granted till realization.
Let the office prepare the decree accordingly. .