1. Brief facts of the case are that the deceased Syed Sarwaruddin (hereinafter referred to as the deceased) was travelling by PIA flight No,PK 311, dated 9-6-1986 from Islamabad to Karachi. During the flight he collapsed due to heart attack. The Captain of the flight passed a message to Karachi Airport for necessary medical assistance. When the aircraft arrived at the ramp it appears there was considerable delay that is of about 30 to 40, minutes before a doctor examined the deceased.
2. The ambulance also arrived late and once the deceased wad disembarked the relatives of the deceased who had come to receive him wanted the deceased to be carried in defendants' ambulance to the Cardio Vascular Institute but the ambulance demanded payment of Rs,300 in cash from said relatives. It appears that the said relatives did not have the required amount of money and hence the defendant ambulance refused to carry the deceased to the Cardio Vascular Institute, whereupon the relatives carried the deceased in their own car and by the time he reached the Cardio Vascular Institute he had died. The plaintiff's claim in this suit that the defendant had a duty to care in so far as the deceased as a passenger was concerned and that they are in breach of such duty. They particularly pointed out to the delay in the doctor coming to examine the deceased and according to them the delay of 30 to 40 minutes was crucial. They also contend that the insistence of the ambulances for payment in cash of Rs,300 was inhuman and uncalled for. They say that if the ambulance, which was certainly better equipped to carry a person with a heart condition, had taken the deceased to the Cardio Vascular Institute straight from the tarmac perhaps life of the deceased could have been saved.
3. ' The plaintiff's claim that the deceased was in garment business and was earning reasonable amount of money and was about 55 years of age at the time of his death and because of his untimely death his heirs i,e,, the plaintiff had been deprived of their only means of living and thus, claim damages of Rs,10,00,000 from the defendants.
4. ' On the other hand the defendants in their written statement claim that they were not in breach of their duty to care at all and that they had taken appropriate measures to look after the deceased while he was in the flight and the Captain had informed Karachi before the arrival of the aircraft.
5. The defendants say that the doctor was available immediately upon the plane stopping at the ramps and also the ambulance was available. They say the deceased was taken off the aircraft on a stretcher and then they located the relatives and were prepared to take the passenger in the ambulance provided, as per regulations. The charges of the ambulance were paid but according to them, the relatives preferred to take the deceased in their own car. The defendants say that they have no liability under the law for the death of the deceased who in any case had a previous history of heart ailment. Considering that the defendants had done everything possible under the circumstances they were not liable for the plaintiff's claim.
6. ' Based on the pleadings of parties following issues were framed:-
(1) Whether the suit is maintainable under the Fatal Accidents Act?
(2) Whether any duty of care was owed to the deceased by the defendants?
(3) Was the defendants under any duty to provide emergency medical aid to the deceased and if so. Whether the defendants failed to discharge that duty?
(4) Was the defendants under a duty to provide an ambulance free of cost to the deceased from the airport to the Cardio Vascular Institute?
(5) Whether any act or omission on the part of the defendant its servant or agent was the proximate cause of the death of the deceased?
(6) Was the deceased previously suffering from a heart condition? If so, was the defendant under a duty to inform the defendant under the provisions of contract of carriage? If the deceased was under such a duty, did he fulfil it and if not, what is the effect of such failure?
(7) Whether the legal heirs, as mentioned in para. 1 of the plaint, were dependent heirs of the deceased and if so, what was his income and how much of it did he contribute to them?
(8) Whether the plaintiff is entitled to damages? If so, to what extent?
(9) Whether the defendants are entitled to Special Compensations? If so, what should be the quantum?
7. ' The plaintiff examined one witness, whereas the defendants examined two witnesses.
8. ' My findings with regard to these issues are as under:-- ' ISSUE No, 1 . The learned counsel for the parties did not address me on this issue at all. An examination of the plaint clearly shows that the suit is based on an actionable wrong and the plaintiffs are the ones who had suffered because of untimely death of the deceased. Consequently.
9. If that this suit is maintainable under the Fatal Accidents Act.
10. ' ISSUE No,2. There would obviously be no doubt that once a passenger boards the plane the airline has a duty to care towards the passenger it is carrying. Not only does this duty arise from the contractual relatic ship between the parties but also the fact that the passenger is entirely at the mercy and in the care of the airline when in air. In any case the defendants have never contended that they did not have a duty to care to the deceased. They only say that under the General Conditions of Carriage which governs the relationship between the passengers and the airlines it could not be said that they had duty to care in this particular case because of the fact that the deceased had a history of heart illness. The condition (h) of the conditions of carriage reads as under:-- "(h) If a passenger is carried whose age or mental or physical condition is such as to involve any hazard or risk to himself, carrier, shall not be liable for any illness, injury or disability, including death, attributable to such conditions or for the aggravation of such condition."
11. ' Now in so far as condition (h) is concerned, in my view a heart condition would not come within the purview of this condition in view of the facts that most travellers who are above the age of 50 would have some kind of a heart condition and indeed this is a disease that is prevalent throughout the world amongst majority of males over the age of 50. If this condition (h) was to include heart ailment also then it would take almost 60% of the passengers out of the category of the people for whom the airline would accept responsibility. This I believe would be totally unfair. In any case heart condition is not such an ailment as to involve any definite risk to the person concerned. A heart attack can occur at any time even to a person who does not have history of heart ailment. I, therefore, find that the defendants did have a duty to care to the deceased.
12. ' ISSUE No,3. It goes without saying that the defendants did have a duty to provide emergency medical aid to the deceased considering that they knew of his condition when he arrived at Karachi. This of course is not denied by the defendants either. The only question that needs to be determined is whether the defendant failed to discharge their duty in this regard or not. According to the defendants, they did not, inasmuch as the doctor was available the moment the aircraft stopped at the ramps and so was the ambulance. However, the evidence that has been led off the doctor as well as of the plaintiff clearly shows that there was about 20 to 30 minutes delay before the doctor arrived. Considering that the ground staff at Karachi had already been informed by the pilot of the aircraft about a sick person with a heart condition to be landed it was the duty of the ground staff of the defendants to ensure that the aircraft ,was met on arrival at the ramps with an ambulance and with a doctor. Even a delay of 5 minutes in the arrival of the doctor and the ambulance was unacceptable considering that the ground staff had advanced information. Now from ^ the evidence of the doctor it is clear that he arrived there at least 30 minutes after the arrival of the aircraft, the question is what emergency aid did they provide. It is obvious that no emergency aid could be provided to a person suffering from a heart attack at the airport. It is also that this could be only dealt with in an institution what was suitably equipped for this purpose. The PIA Hospital at the airport obviously was not equipped for the purpose and it was necessary, for the defendants to arrange for the deceased to be immediately removed to a hospital with the requisite facilities which was obviously Cardio Vascular Institute. To that extent in my view the defendants failed to discharge their duty. I, therefore, find that firstly that the defendants had a duty to provide emergency medical aid to the deceased and secondly that they failed to discharge such duty.
13. ' ISSUE No,4. The question whether the ambulance was to be provided free of cost to the deceased is a question that need not even be asked. On occasions like these it is the bounden duty of people responsible to do everything possible to save life of an individual rather than bother about the costs involved. This is not only a duty that arises from the contractual responsibility inherent in the carriage of passengers in an aircraft but is also a humanitarian duty which is enjoined upon every Muslim in our religion. It is another matter that this duty is performed more in violation than in observance. In so far as the costs are involved even if under the rules of the defendants, costs of the ambulance had to be paid such cost did not have to be paid immediately upon the deceased being taken into the ambulance. These could have been paid subsequently. Even if there was a danger of costs not being paid it could be regarded as a liability on the deceased's legal heirs and could be recovered subsequently. I, therefore. Find that this issue ought to be answered in the affirmative.
14. ISSUE No,5. Clearly there has been considerable delay in the arrival of the doctor on the tarmac after the aircraft had stopped at the ramps. To that extent there was a definite omission on the part of the defendants. Secondly the dispute over the payment for the ambulance, mu, have taken certain amount of time: Thirdly since the ambulance did not carry the deceased to the Cardio Vascular Institute it would mean that the deceased was deprived of all the assistance and help and facilities that are available in an ambulance during his journey' to the Cardio Vascular Institute. Fourthly an ambulance is equipped to move quickly even through the traffic and has certain privileges and is not bound by the traffic rules and thus, could have got to the Cardio Vascular Institute quicker than the car of relatives did. Finally assistance being of the essence in the case of heart attack I find that it is the act and the omission of the defendants that was the proximate cause of the death of the deceased.
15. ' ISSUE No,6. This issue has already been answered under issue No,2, ISSUES Nos.7 AND 8. It is obvious that the family of the deceased lived in a joint family system and it is possible that all the sons contributed towards garment business that was run by the deceased.
16. Consequently, it is difficult to determine as to how dependent the children were on the father but the fact remains that they were dependant upon him. In so far as income of the deceased is concerned and the damages that the plaintiff are entitled to claim would be determined in accordance with the principles laid down by me in another case being Suit No,839 of 1987.
17. ' In that case I had held that before determining the damages payable certain coordinates have to be determined, in respect of the deceased which are as below:-- {{TABLE}}
(1) Age.
(2) Nature of health.
(3) Working life.
(4) Educational Qualification.
(5) Famly background.
(6) Earning Capacity.
(7) Future increase in income and inflation.
(8) Personal Allowance.
(9) Sums avail- able for benefit of claimants.
18. 55 years.
19. Not good. Remaining 10 years to complete 65 years. No evidence but presumably Graduate.
20. Lower Middle class. Rs,5,000 per month.
21. (Average income claimed in plaint which I accept).
22. 20% 33% 75% of total earning less 33% Calculation of damages based above coordinates would be as follows:--on Rupees
(a) Earning during working life of 10 years @ Rs,5,000 per month.600,000 Rupees Rupees
(b) Further increase 120,000 in income @ 20%.
(c) Total earning. 720,000
(d) Personal Allow- 237,600 ance deduction @ 33%.
(e) Remaining total 482,400 earning.
(f) Contribution to 361,800 family purse Lower middle class 75%. {{TABLE}} ' I, therefore, find that the plaintiffs are entitled to damages of Rs,361,800 and I therefore, decree this suit in the sum of Rs,361,800 alongwith interest as prayed, which is to be shared amongst the