1. ' This appeal has been filed against the judgment and decree passed by Additional District Judge, Karachi in Suit No, 854/1967, dated 18th November, 1969.
2. ' The facts briefly stated are as under : ' Mr. Muhammad Yasin (hereinafter referred to as the "deceased") an employee of P.I.A., holding the post of Chief Flight Engineer, died in the P.I.A. Air crash near Cairo on 20th May, 1965. The deceased was insured with the respondents under life insurance Policy No, 17533 for a sum of Rs, 25,000 plus a Supplementary Double Indemnity Contract No, 2095, whereunder an additional sum of Rs, 25,000 was payable under the conditions mentioned therein in case of death resulting from bodily injury effected directly and independently of all other causes through external, violent and accidental means.
3. ' It is the case of the plaintiffs/appellants that the deceased was travelling on a scheduled flight of P.I.A. On an established passenger route, which was from Karachi via Dehran, Cairo to London. The deceased who held post of Chief Flight Engineer, was travelling from Karachi to Cairo as a supernumerary and was scheduled to take charge of and operate the flight from Cairo onwards. It is, therefore, emphatically the case of the appellants that the status of the deceased at the time of the air crash was that of a passenger.
4. ' The respondents in their written statement acknowledged their liability on the basis of the main life insurance policy and paid a sum of Rs, 25,000 in ful but did not accept the further claim of the appellants for a sum of Rs, 25,000 on basis of the Supplementary Double Indemnity Contract appended to the life insurance policy.
5. ' The position that appellants Nos. 1 and 2, namely, plaintiffs Nos. 1 and 2 in the suit were interested in the claim under the policy being trustees of P.I.A.C. Provident Fund Trust was not admitted by the respondents but in regard to appellants Nos. 3 to 7 who are legal heirs of the deceased, the respondents denied their right to claim any of amount under the said policy or the said Supplementary Double Indemnity Contract on the ground that the policy stood assigned to P.I.A.C.
6. Provident Fund Trust and that under the conditions of the Supplementary Double Indemnity Contract, they were not liable to pay the amount claimed.
7. ' On the basis of the aforesaid pleadings of the parties, the trial Court framed the following issues :
(1) Whether plaintiffs Nos. 3 to 7 have any cause of action against the defendants ?
(2) Whether plaintiffs Nos. 1 and 2 are trustees of P.I.A.C. Provident Fund Trust and competent to file this suit ?
(3) Whether the deceased was travelling as a passenger and not as a member of the Crew on the ill-fated flight ?
(4) Whether Supplementary Double Indemnity Contract No, 2095 did not exclude the risk, under which the deceased died ?
8. (5)Whether the defendant is liable under the Contract No, 2095 ? If so, for what amount and to which of the plaintiffs, if any ?
(6) Whether the defendants are entitled to special costs under section 35-A of C.P.C. ?
9. ' The learned Additional District Judge, Karachi by his judgment dated 18th November, 1969, dismissed the suit on consideration of Issues Nos. 3 to 5 but in regard to Issues Nos. 1 and 2, he gave a decision in favour of the plaintiffs.
10. ' It is contended by Mr. Muhammad Hanif Khan, the learned counsel for the appellants as under :
(1) That in arriving at the impugned decision, the trial Court did not properly consider the evidence on record by which it was clearly established that the deceased was not operating the flight and was not a member of the crew at the time of the accident.
11. (2)That the judgment was passed under misconception of facts specially on the ground that the appellants had withheld material evidence which was in their possession. It is further contended in this connections that the appellants Nos. 1 and 2 had filed the suit as trustees of Provident Fund and P.T.A. Was not a party to the suit. -
(3) That the notice for production of material records was served on the appellants through misconception, in as much as the requisite documents were not in possession or control of any of the appellants.
(4) That the respondents were not entitled to the benefits of the exclusion clause of the Double Indemnity Contract as they had failed to prove their case.
12. ' With regard to contention No, 1 above, the learned Additional District Judge considered the evidence of Mirza Hamid Baig (P. W. 1) the Insurance Officer of P.I.A., who had stated in his cross- examination that the deceased as suprenumerary at the time was not a member of the crew and was in the passanger lounge. He has also considered the evidence of Ahsan Ahmad (P.W. 3). Who had stated that on inquiry from the deceased whether he was going in the inaugural flight, he had got the reply from the deceased that he was going upto Cairo off duty and from Cairo onwards he would resume duty. The learned Additional District Judge also discussed the evidence of Mr. Dawood (P.W. 5), who had stated that the Cairo Flight was scheduled passenger flight and that Flight Engineer Shafique was operating the flight. The witness had further stated that although the deceased was on the plane at the time he was supernumerary. This witness also stated that the deceased was to operate the flight from Cairo to London. The witness explained that they were two manifests, one for passengers and the other for the crew. The witness, howeder, admitted that he had not seen the manifests or the schedule showing the crew and the documents had not been produced in Court. The witness admitted that the deceased was not operating the flight at the time and that the non-operating crew is issued a ticket. He, however, also admitted that the deceased was not issued a ticket as in those days there was no such practice. The witness had further stated in case anyone is flown from one station to another to join duty as supernumerary, such fact is indicated in the manifest.
13. From the evidence, discussed above and the other evidence on record, it appears to be admitted position that the deceased at the time of the crash was a supernumerary Chief Flight Engineer and further that his name was not shown in the list of passengers which is Exh. 60 on the record. In Shorter Oxford English Dictionary Vol. II (Edition III) at page 2083 "Supernumerary", is indicated as having been applied to soldiers, and to a legion after it is complete. The word as adjective has been defined as under : "That is beyond or in excess of the usual, proper, regular, stated, or prescribed number or quantity ; additional ; extra ; left over."
14. ' The word also : "Applied to an official, officer or employee not formally belonging to the regular body or staff, but associated with it to assist in case of need or emergency."
15. ' The definition further mentions as under : "A supernumerary person or thing specially a supernumerary official or employee on board ship, a sailor, or one of a body of sailors, over and above the ships complement-An additional officer attached to a body of men in the Army or Navy for some special purpose."
16. It is apparent from the meaning of the word supernumerary quoted above, that although at the time he may not have been performing his duties as Chief Flight Engineer, he comes under the category of crew rather than of a "passenger".
17. ' In Stroud's Judicial Dictionary (Edition IV), the word "passenger" ins the different connotations has been considered on the basis of decisions of Courts. For instance the wife or father-in-law of a Captain of a vessel, who is on the vessel and being carried by it to a place to which they wished to go but who were being so carried by the Captain's invitation without the knowledge of the owners ; were held not to be "passenger" within Merchant Shipping Act, 1854.
18. ' Further explaining the definition of " passenger " it is stated as under : "Ordinarily payment of fare is, of course, a clear proof that a voyager was a passenger ; but it is submitted that a voyager (other than the officers and crew) is a passenger, though he pay no fare if the owners of the ship carry him in pursuance of an obligation or duty."
19. ' The aforesaid statements are with regard to definition of "passenger" as held by the British Courts within Merchant Shipping Act, 1854.
20. "Passenger" is definied in Black's Law Dictionary (V Edition at page 1012) as under : "In general, a passenger is one who gives compensation for a ride. Shapiro v. Bookspan 15-5 Cal.
21. App. 2nd 353 p. 2d 123,
126. The word passenger has however various meanings, depending upon the circumstances under which and the context in which the word is used ; sometimes it is construed in a restricted legal sense as referring to one who is being carried by another for hire ; on other occasions, the word is interpreted as meaning any occupant of a vehicle other than the person operating it. American Mercury Ins. Co. v. Bifulco 74 N.J. Super. 191, A. 2d. 20, 22.
22. ' The essential elements of "passenger" as opposed to "guest" under guest statute are that driver must receive some benefit sufficiently real, tangible, and substantial to serve as the inducing cause of the transportation so as to completely overshadow mere hospitality or friendship it may be easier to find compensation where the trip has commercial or business flavour. Friedhoff v.
23. Engberg .82 S. D. 522, 149 N.W. 2d 759, 761, 762, 763.
24. ' A person whom a common carrier has contracted to carry from one place to another, and has, in the course of the performance of that contract, received under his care either upon the means of conveyance, or at the point of departure of that means of conveyance, ' The most important matter to be considered in the instant appeal is as to whether the supplementary double indemnity contract covers the claim of the appellants with regard to insurance in the sum of Rs, 25,000. The aforesaid supplementary contract for incidental death was attached to main part of life Policy No, 17533 on the life of the deceased and there is mention in it that it was issued in consideration of the application for the policy and the supplementary contract and an additional premium of Rs, 37.50 was payable yearly simultaneously with under the same conditions as regular premium of the said policy. The company under the contract agreed to pay to the beneficiary or beneficiaries under the policy in addition to the main policy payable thereunder the sum of Rs, 25,000 on satisfactory proofs that the death of the injured resulted from bodily injury effected directly and independently of the other causes external violence and accidental means of which, except in case of drowning or of internal injury established by autopsy if there was evidence of visible contusion or wound on the exterior of the body and such additional amount was made payable only on condition that satisfactory proof is received by the company to the effect as under :- "(1) That the death of the Insured occurred within 90 days of sustaining such injury during the continuance of the said policy and this contract subsisting, and
(2) that such bodily injury was received before the anniversary of the policy on which the age of.
25. The injured at nearest birthday is sixty years. The company shall have the right and opportunity to examine the body and to make an autopsy unless forbidden by law."
26. ' The aforesaid contract also contains the condition as under : "If satisfactory proof of the death of the injured has been received 'by the company but liability under his double indemnity contract is denied by it, the company may pay any amount payable on the death of the Insured as set forth in the said policy without prejudice to the claim under this contract or to the defence thereof."
27. ' It is under the conditions quoted above that only the amount payable on the death of the injured in the main policy was paid and the claim under the double indemnity contract was denied.
28. ' The denial of the claim has been based on the "risk excluded" clause which is worded as under :- "The insurance under this supplementary double indemnity contract shall not cover death caused directly or indirectly, wholly or partly by: (1) self-destruction or any attempt thereat while sane or insane, (2) war declared or undeclared, strikes, riots, civil war, revolution, or any war like operations,
(3) military or naval service in time of declared or undeclared war or while under orders for war like operations or restoration of public order, (4) making an arrest as an officer of the law, (5) assault or murder, (6) heatstroke, sunstroke, (7) participation in any brawl, (10) pregnancy or child birth although such death may have been accelerated or enhanced by accident, (11) accident occurring while or because the Insured is effected by alcohol or any drug, (12) hernia ptomaines, or bacterial infection (except pyogenic infection which shall occur with and through an accidental cut or wound), (13) any disease or sickness, (14) poison, gas or fumes (voluntarily or involuntarily taken),
(15) entering, operating, or servicing, ascending or descending from or with any aerial aevice or conveyance except accident from injuries sustained while the Insured is a passenger in an aircraft operated by a passenger airline on a scheduled passenger trip over its established passenger route, (16) submarine descent, the risk was excluded."
29. ' It has been argued on behalf of the appellants that there is evidence of Ali Muhammad insurance agent of the respondent that the deceased had accepted the policy for double indemnity and had signed in his presence. It is, therefore, further argued that if the "risk excluded" clause applied to the case of the deceased who was undoubtedly Chief Flight Engineer, the insurance agent should have made it clear to the deceased that he was not eligible for the supplementary double indemnity insurance policy. However the argument cannot be accepted in view of the fact that even a Chie Flight Engineer can at a time travel by a flight as passenger. The important point for determination is whether the deceased could be considered to have travelled as passenger and not a member of the crew. The learned Additional District Judge in the impugned judgment has given proper reasons besides the non-production of the crew manifest document, for which he came to the finding that the deceased was not a passenger in the ill-fated plane which crashed at Cairo. He has relied upon the evidence of the wit ness Dawood Fatakawala, an employee of the P.I.A. Who produced the passenger manifest which did not include the name of the deceased in th passenger list. It is true that witness did not or could not produce the manifest of crew but in view of the fact that the name of the deceased was not in the passenger manifest whatever the position about the other manifest, namely, the manifest of crew, it is apparent that the deceased was not treated as a passenger by the owners of the flight. It is also clear from the evidence of witness Dawood that although Flight Engineer Shafiq was operating the, flight, the deceased was on the plane as supernumerary who was to operate the flight from Cairo to London. This evidence had made clear the position that only two manifests are prepared, one of the passengers and the other of the crew.
30. The witness also further admitted that no ticket had been issued to the deceased. The very fact that the supplementary double indemnity contract contained the "risk excluded" clause and further that there was provision in the contract that if satisfactory proof that the conditions mentioned in the contract applied to the insured was not forthcoming the company could deny liability while paying the amount of the main policy, shows that strict compliance with the terms of the contract was a must. The life insurance in respect of all the personnel of the crew is compulsory as was in the case of the deceased, however, the extra insurance under the supplementary double indemnity contract could have created liability for the respondent only in case any member of the crew already insured had taken flight not as crew or supernumerary crew but as passenger. For the reasons already discussed it is apparent from evidence on record that the scheduled flight was from Karachi, via Dehran, Cairo to London and the deceased as member of the crew was to operate the flight from Cairo to London. The fact that certain duties were allocated to members of the crew during the flight and they were to relax during certain periods would not change their status as members of the crew when temporal rily off duty during the same flight.
31. ' In view of the circumstances stated above, there is no weight in this appeal which is accordingly dismissed, however, with no order as to costs.