1. ' S. SAEED ASHHAD, J.--These six appeals have been filed by the aforesaid appellants against the judgment and decree of a learned Single Judge of this Court dated 24-11-1994.
2. ' The brief facts requisite for the purpose of disposal of these appeals as per the judgment of the learned Single Judge are as under:- ' "It is alleged by the plaintiffs in all the suits that the deaths were caused "by falling of one of the aircraft of the defendants during its flying negligently and without due care"; that the defendants "committed the act of negligence, default, lack of prudence and reasonable foresight in flying the aircraft over the populated area knowingly and deliberately in very rash and negligent manners.
3. The aircraft was either defective or the pilot, who was flying the said aircraft, was not piloting and flying the same with care, prudence and diligence and was acting with negligence and default which caused serious loss of lives of 'peoples...."; and that the death of the deceased was caused by actionable wrong, wrongful act, negligence, default, malfeasance, nonfeasance, misfeasance and lack of reasonable foresight" of the defendants.
4. ' The deaths of the several persons mentioned in the plaints as a result of the crash of their aircraft is not denied by the defendants who have, however, denied the allegations of negligence, default etc. Their plea in their written statement is that the aircraft in question was "declared serviceable by the concerned authorities and there was no fault or operational defect in the said aircraft and further that the pilot, who was detailed for this mission, was also declared fit physically and mentally for flying." The further plea of the defendants, in this connection, is that the "occurrence had taken place due to some uncertain reasons which were beyond the imagination and control of the defendants."
5. ' The aforesaid respondents are the heirs/legal representative of the six persons, who had died on account of the above fatal accident, namely M/s. Syed Amjad Ali, Mst. Mariam, Murad Ali, Jai Ram, Ahmad Ali and Chimney Khan.
6. The respondents filed six separate suits in this Court for recovery of damages under the Fatal Accidents Act, 1855 against the aforesaid two appellants. All the aforesaid suits bearing Nos. 729, 730, 731, 732, 733, and 734 of 1988 corresponding of Civil Appeal Nos. 129, 130, 131, 132, 133 and 134 of 1996 respectively were disposed of by a common judgment. A learned Single Judge of this Court by his common judgment dated 22-11-1994 decreed all the aforesaid suits and granted compensation to the respondents as under: - Suit No.729/88, corresponding to HCA No.130/96; amount of damages awarded.Rs.2,36,200.00 Amount payable to each heirs of the deceased; Mst. Ameena Rs.39,350.00 Gul Bibi, Noor Bibi, Shahr Bano, Zainab, Zeenat & Ghulam Hussain (minors)Rs.6,350.00 each Sakina. Rs.78,700.00 Haseena. Rs.78,700.00
2. Suit No.730/88, corresponding to HCA No.132/96, suit decreed in the sum of Rs.6,11,000.00 Share of each heirs as under; Mst. Bhani. Rs.4,75,000.00 Dayal Rs.43,660.00 Janina Das (minor) Rs.63,000.00 Rami Bai Rs.29,540.00
3. Suit No.731/88, corresponding to HCA No.131/96, amount of damages awardedRs.10,95,000.00 Share of each heir as under; Syed Ali. Rs.60,000.00 Shah Bano Rs.60,000.00 Nadia Murad (minor) Rs.2,45,000.00 Haseena Rs.7,30,000.00
4. Suit No.732/88, corresponding to HCA No.133/96, amount of damages awardedRs.6,10,600.00 Share of each heirs of the deceased Asif (minor) Rs.25,000.00 Kashif (minor) Rs.24,000.00 Lubna (minor) Rs.23,000.00 Humad (minor) Rs.28,000.00 Syed Ali Akbar Shah Rs.20,000.00 Hamida Bi Rs.4,90,600.00 5.Suit No.733/88, corresponding to HCA No.134/96, amount of damages ofawarded.Rs.9,78,840.00 Share of each of heirs of the deceased as under: Muhammad Zahoor Rs.3262.00 Muhammad Motabar Rs.6525.00 Nrul Hudda Rs.13,052.00 Akbar Khan Rs.19,577.00 Nowar Paresha Rs. 7,57,969.00 Afzal Khan (minor) Rs.20,208.00 Ajmal Khan (minor) Rs.27,733.00 Jaial Khan (minor) Rs.29,365.00 Fatima Bibi (minor) Rs.30,998.00 Hameeda Bibi (minor) Rs.34,260.00 Abdur Rahim (minor) Rs.35,890.00 6.Suit No.734/88, corresponding to HCA No.129/96 amount of damages of awardedRs.9.55,000.00 Share of each heir of the deceased as under: Ishrat Begum Rs.7,00,000.00 Rizwan Ali (minor) Rs.94,475.00 Irfan Ali (minor) Rs.1,12, 840.00 Shahnaz Begum. Rs.52,685.00 ' In addition to the above the learned Single Judge also awarded interest at the rate of 14% P.A.
7. From the date of the suit till payment of the decretal amount to the heirs of the aforesaid deceased persons. The appellants feeling aggrieved and dissatisfied with the aforesaid judgment and decree of the learned Single Judge have challenged that same by way of aforesaid six appeals in the said six suits.
8. ' We have heard the arguments of Mr. S. Tariq Ali, learned standing counsel for Federal Government on behalf of the appellants and Mr. Nasir Maqsood, advocate for the respondents, who had appeared in pursuance of preadmission notices issued to him in all the aforesaid six appeals. The learned counsel were put on notices and were informed that the appeals would be heard, decided, disposed of and or dismissed as the case may be on merits.
9. ' The grievance of the appellants as put forwarded by Mr. S. Tariq Ali, is that the learned Single Judge determined the quantum of damages in the aforesaid six suits in a very liberal manner and the damages awarded by him are not only highly excessive but the basis for calculating them i,e,, income which the deceased would have earned during their life time as well as their life expectancies till the age of 70 years were also highly exaggerated and excessive, which is neither based on any material, reliable and satisfactory evidence adduced by the respondents nor any plausible, satisfactory and cogent reasons have been advanced by the learned Single Judge for the method applied by him for determining and calculating, the damages. The next ground on which the judgment of the learned Single Judge has been attacked is that the learned Single Judge completely failed to take into consideration the very basic requirement of establishing beyond any reasonable doubt that the accident resulting in the deaths of the deceased persons caused by any rash, negligent or careless act of the appellant, which is to be necessarily proved in suits of the aforesaid nature before awarding damages to the heirs of the deceased against the party whose act had resulted in causing the death of the earning member of a family. He further submitted that the heirs of the deceased in all the six suits had completely failed to establish this fact inasmuch as no material, cogent and satisfactory evidence was brought on record by them to establish; firstly, that the accident which resulted in the crash of the aircraft was on account of any negligent, careless or rash act of the pilot, and secondly, that the aircraft in question was not airworthy and fit for flying initially or that it subsequently developed some fault during the course of the flight on account of improper maintenance prior to its flight. He finally submitted that in view of the aforesaid submissions and arguments advanced by him, the appellants have succeeded in making out a strong case for allowing the six appeals, setting aside the judgment and decree appealed against and dismissal of the suits.
10. ' Mr. Nasir Maqsood, learned counsel for the respondents submitted that the appellants are precluded from raising the aforesaid arguments and objections advanced by the standing counsel on their behalf. He further submitted that the question of determination or calculation of the amount of damages after taking into consideration the income which the deceased in each of the aforesaid six suits would have earned if he had not died and the determination of life span of each of the deceased till the age of 70 years was not questioned and objected to by the appellants during the course of the proceedings in the aforesaid suits. Mr. Nasir Maqsood, in support of his submission had drawn our attention to the observations of the learned Single Judge appearing below the amount determined in each of the aforesaid six suits to the effect that the calculation was not questioned by the learned counsel for the respondents. In view of the above position, we are satisfied and find ourselves in agreement with the contention of Mr. Muhammad Nasir Maqsood that the appellants in these appeals are precluded and estopped from questioning the calculation of the damages and the amounts of damages determined by the learned Single Judge which the appellants were found liable to pay in each of the six aforesaid suits as they had not questioned or objected to the same. As a corollary of the appellants act in not objecting to the calculation and determination of the damages, the appellants would also be precluded from raising the issue of their liability for the crash of the aircraft and to pay the damages to the heirs of the deceased persons inasmuch as the question of calculation and determination of the quantum of damages would arise only after the liability for the deaths of the deceased had been fixed on the appellants on account of rash, negligent or careless act(s) on their part.
11. ' With regard to the contention of the learned standing counsel relating to the failure of the respondents to bring on record satisfactory and reliable evidence to establish that the crash of the aircraft was neither on account of any fault or careless or rash act of the pilot of the aircraft or that he was in any manner in-capable or unfit for flying or that the aircraft prior to its above flight had not been declared airworthy, proper, and fit for flying, it is to be observed that the same does not carry any force and is without any substance as in case of accident/mishap of the aforesaid nature resulting in the deaths of innocent persons, who were neither responsible nor connected with the aforesaid accident or crash, the heirs of the deceased were not required to establish or prove that the deceased persons had taken reasonable precaution to avoid the said accident/crash resulting in the deaths of the victims nor were they required to lead evidence to the affect that the plane/aircraft was not in proper and fit condition for flying or that the pilot was not fit to fly the same on account of any sickness, ailment, physical or mental disability or due to any defect or short coming in flying abilities. The burden of proving that the accident/crash did not occur on account of any negligent, careless or rash act of the pilot or on account of some defect or fault in the aircraft, was on the appellants which they failed to discharge by adducing reliable, solid and satisfactory evidence. It is further to be observed that the appellants even could not establish the fact that prior to the flight, the pre-flight check up and examination required to be conducted in respect of the aircraft in question as per requirements, was carried out. In the circumstances, the appellants could not claim that the aircraft in question was airworthy and was absolutely fit and in sound condition for flying and the appellants had failed to bring on record reliable and satisfactory evidence to discharge the burden that the crash of the aircraft was not on account of any shortcoming, defect, negligence or carelessness on their part so as to absolve them of the irresponsibility for making payment of damages to the respondents. The appellants cannot also avoid their responsibility for the crash in view of the doctrine of Resipsa loquitur which means that the things speak for themselves. For the application of this doctrine three ingredients must be shown to exist. Firstly, that the thing that inflicted the damage was under the sole management and control of the appellants; secondly, that the occurrence or the crash was of such a nature that it could not have happened without negligence or carelessness; and thirdly, that there must be no evidence to establish as to why and how the occurrence/crash had taken place. All the three ingredients existed and were present in this case and in such circumstances it was for the appellants to persuade and satisfy the Court that the accident/crash of the aircraft did not occur on account of their negligence and on their failure to discharge their burden, the mere fact of the crash of the aircraft is prima facie evidence of such negligence on the part of the appellants. For the above reliance is placed on the case of Pakistan Steel Mills Corporation Ltd. And another v.
12. Malik Abdul Habib and another (1993 SCM R 848.
13. ' There is another aspect of the case, which goes against the appellants. It is their failure to produce in evidence a copy of the .Report of the departmental inquiry which had been instituted for finding out the reasons for such crash and for pin-pointing the actual cause for the crash. It is an admitted position that an enquiry was conducted and its report was submitted but till date it is not known as to what the report has to say with regard to the causes of the crash and whether the same was on account of any defect in the aircraft or due to any rash, careless or negligent act of the pilot or on account of some physical disability from which the pilot was suffering prior to the flight and was not in a proper condition to fly the aircraft. Attention of Mr. S. Tariq Ali, was drawn to this aspect of the case and he was asked to produce a copy of the report of the aforesaid domestic inquiry but in spite of several opportunities having been provided, no copy of the report was produced before us and when asked as to why the same was not produced, Mr. S. Tariq Ali stated that the same was not being provided to him in spite of his insistence. The above act of the appellants in not making available a copy of the inquiry report to their counsel for production thereof in Court strongly leads to a presumption that the appellants did not produce copy of the report in Court intentionally as the filing of the same would not have been in their interest and it would have falsified their contention that the crash of the aircraft was not on account of any negligent, careless or rash act of the pilot or on account of any ailment or physical disability of the pilot or on account of any defect in the aircraft. In the circumstances, the contention raised on behalf of the appellants with regard to the failure of the respondents to adduce, material, reliable and satisfactory evidence to prove that the plane crash was on account of any positive act of negligence, carelessness and rashness of the pilot or any defect or fault in the aircraft is without any substance and requires no consideration. Mr. Nasir Maqsood, learned counsel for the respondents submitted that in a case arising out of a fatal accident the approach of Government departments/functionaries should be sympathetic, humane and pragmatic and they should make all possible efforts to ensure that the aggrieved persons, which in the present case are the heirs of the deceased persons, get their rights, entitlements, dues, payments or benefits to which they are entitled to by way of compensation under the provision of any statue at the earliest and without loss of time. He further submitted that it is now a well established principle of law that the Government department/functionaries should not raise frivolous pleas in an action brought by a citizen for recovery of this lawful claim either with the object to deny it or to prolong litigation in respect thereof. He further submitted that the Government or public body should resist the temptation to litigation like stubborn and quarrelsome litigants for insignificant amount raising technical pleas and that it should not compel the handicapped to fight litigation against his formidable adversary and further that the Government department/functionaries should act in aid of advancing the cause of justice and not to frustrate or defeat the same by resisting a genuine claim arising out of a fatal accident. In support of his above contention Mr. Nasir Maqsood, referred the following cases;
(1) KTC v. Latifur Rehman, (1993 SCM R 1149),
2. Pakistan Steel Mills Corp. v. Nazir Hussain Shah (1990 CLC 515) and 3 Punjab Road Transport Corp. v. Naziran Bibi (PLD 1983 SC 340).
14. ' We have gone through the aforecited authorities. In all the aforecited authorities the pronouncements/averments made are that the Government departments/functionaries should avoid unnecessary and frivolous pleas in litigation instituted by the aggrieved or, affected party for recovery of his lawful claim particularly in cases arising out of fatal accident and on the contrary the Government departments/functionaries should ensure that the aggrieved or affected persons get their rights, entitlements or relief in a reasonable manner promptly without any loss of time. It has further been declared that the attitude of the Government departments/functionaries to resist a genuine claim arising out of a fatal accident spending considerable amount on litigation instead of settling the matter with the dependents of the deceased is not only deplorable but also against the spirit of speedy and in-expensive justice.
15. ' It may also be pointed out that according to the judgment of the learned Single Judge, the appellants were directed to deposit the decretal amount with the Nazir of this Court within two months from the date of the judgment and the Nazir was directed to invest, separately the shares of the minor beneficiaries in Defence Saving Certificates, but till today the appellants have not deposited the decretal amount in any one of the aforesaid six suits and the respondents are still awaiting the payments which have ordered to be paid to them by the learned Single Judge vide his aforesaid judgment and decree.
16. ' Mr. Nasir Maqsood, learned counsel for the respondents had also objected to the maintainability of the aforesaid appeals on the ground that they were time-barred as they were filed beyond the period of limitation provided for filing of the High Court Appeal. However, this point was not pressed by Mr. Nasir Maqsood, when his attention was drawn to the fact that there was nc material evidence on record to establish that estimation of the copying fee on 28-3-1995 after a period of more than four months of filing the application for obtaining the certified copies of the judgment and decree was on account of failure of the appellants to pursue the matter for early estimation of the copying fee. Appellants had filed the application for certified copies within time and the presentation of the appeals in Court was within the period prescribed for filing the aforesaid appeals.
17. Upon the above discussion, we are satisfied that the aforesaid appeals are without any substance and do not merit consideration. By a short order dated c 11-11-1997 we had dismissed the aforesaid appeals in limine for reasons to be recorded later. The above are the reasons for such dismissal of the aforesaid appeals.