1. MUSHIR ALAM, J.--- The plaintiff, against the above-named defendants has filed this suit for damages and compensation for Rs. 10 Million. Cause for the suit appears to have arisen on account of denied boarding by the defendant No. 2, Emirates Airlines, against confirmed reservation on a ticket issued by the British Airways the defendant No. 1.
2. Briefly stating the facts as given in the plaint are that, the plaintiff is a doctor, senior Professor of Psychiatry, well reputed nationally and internationally for his philanthropist work. It is averred that, the plaintiff was seriously suffering from trigeminal neuralgia, treatment of which, it is stated, was not available in Pakistan. He was medically advised consultation and treatment abroad.
3. Consequently, the plaintiff obtained an appointment with Dr. Earnest Methew of Trigeminal Pain Center of Massachusetts General Hospital, Boston, U.S.A. In order to proceed abroad, the plaintiff alongwith his son Irfan Haroon as an attendant obtained return air tickets issued by British Airways, defendant No. 1, through travel agents, the defendants Nos. 3 and 4 respectively for Karachi-Dubai- London-Boston-Indianapolis-Newyork-London-Masqat-Karachi. Confirmed return tickets were issued on 13.4.1999 for a journey originating from Karachi on 14th April, 1999 on Emirates Airline to Dubai and from Dubai to further destination on British Airways.
4. Since the British Airways does not operate from Karachi, plaintiff on account of alternate arrangement were required to travel from Karachi to Dubai through Emirates Airlines and onwards from Dubai they were booked on British Airways. Plaintiff and his son reported at Check-in counter of Emirates, at Quaid-eAzam International Airport on 14.4.1999 for obtaining their boarding card, they were utterly shocked; when the counter staff informed that they had no reservations .
5. However, when computer slips showing confirmation of seats were shown, check-in staff of defendant No. 2 changed the stance and informed that since the seats were not reconfirmed 72 hours before the start of journey they could not be accommodated. According to the pleadings, plaintiff was under severe trigeminal pain, he and his son made their best to persuade the counter staff for accommodating them, but to no avail. As such the plaintiff could not avail of the appointment with Dr. Earnest Methew fixed for 16.4.1999.
6. It is the case of the plaintiff that denied boarding, not only caused severe anguish, pain and torture to the plaintiff but also financial loss. On account of aggravating ailment, plaintiff had to obtain alternate appointment from other consultants in USA for immediate relief. His sons proceeded in advance and obtain appointment from another consultant in USA. Accordingly, the plaintiff alongwith his wife travelled to USA and incurred heavy expenses in getting the interim treatment before he could see Dr. Earnest Methew by subsequent appointment. It is asserted that the plaintiff were denied boarding to, accommodate some high officials who waned to go to see cricket tournament in Sharjah and attend trade festival in Dubai. In the foregoing backdrops, the plaintiff has prayed for the following relief:-
(i) To declare that actions of the defendants Nos.
7. 1 and 2 and their persons acting under and through them in refusing the issuance of boarding cards and allowing travel against confirmed air tickets Nos. 112544237191210 and 112542407657556 are illegal and ma/a fide and further to declare that on refusal to issue the boarding cards and allowing to travel from Karachi to Dubai and onwards to Boston has caused heavy financial losses and so also physical and mental agonies humiliation and defamation to the plaintiff enjoying a good reputation as being a senior Professor of Psychiatry and a great philanthropist.
(ii) To grant decree for a sum of Rs. 10 million as damages and compensation in favour of the plaintiff and against the defendants jointly and severally.
(iii) To award costs and any other relief as this Honourable Court may deem fit and proper to the plaintiff and against the defendants jointly and severally under the facts and circumstances of the case.
8. The defendant No. 1, British Airways, denied the allegations as well as any liability on the premise inter alia; that they issued tickets from Karachi-Dubai Sector as an agent for defendant No. 2, the Emirates Airlines, who were the principal carrier for said sector. It was therefore, pleaded that there is no privity of contract between the plaintiff and defendant No. 1. It was maintained that, British Airways had confirmed reservation for the plaintiff and his son for onward journey from Dubai to London etc. But they failed to turn up at the check-in counter at Dubai and flight had to depart without them. It was further averred that, it is the defendant No. 2, who if at all, is liable not only to the plaintiff but in case of award of any damages against the defendant No. 1 then also, the defendant No. 2 are liable to indemnify the defendant No. 1 as well.
9. The position adopted by the defendant No.2 the Emirates Airlines was that, the seats of the plaintiff did not had 72 hours prior confirmation, therefore, they were not obliged to accommodate the plaintiff and his son.
10. Defendant No. 3, M/s. Passage Travels and Tours, who issued ticket to the plaintiff, though served, chose not to defend.
11. Defendant No. 4, American Express Bank Limited, who issued ticket to the plaintiffs son, admitted having issued ticket with confirmed seats, but they denied any liability on the assumption that it was a dispute between plaintiff and the Emirates Airlines. They also denied the illness of the plaintiff. On the pleadings of the parties, following issues were framed on 27.9.2001:--
(1) Whether the defendants issued confirmed tickets for the entire journey of the plaintiff and his son from Karachi to USA?
(2) Whether the plaintiffs reservation for flight EKE 603 had been cancelled for its non-confirmation within 72 hours?
(3) Whether due to defendant's illegal acts, disease of the plaintiff aggravated and the plaintiff suffered severe pain, mental agonies, humiliation and losses to his good reputation? If so, which- of the defendants are responsible?
(4) Whether the plaintiff suffered any losses due to denied boarding on flight Ex, 603 on 14.4.1993? If so, what is the quantum of losses?
(5) Whether the defendants Nos. 1 and 2 have liability under the General Conditions of Carriage of passengers and Conditions of Contract for the denied boarding at Karachi on 14.4.1999?
(6) Whether the defendant No. 1 is entitled to be indemnified by the defendant No. 2 in case a decree is passed against them?
(7) What should the decree be?
12. ISSUE NO. 1: Mr. Akhtar Hussain, learned counsel for the plaintiff, contended that, confirmed tickets on the Emirates Airlines were issued to the plaintiff and his son on 13.4.1999 for the Karachi-Dubai sector scheduled for 14.4.1999. He has drawn my attention to Exhibits P/5 and P/6 respectively, to show that the tickets were issued to the plaintiff and his son, a computer slip, Exhibit P/7, issued by the Travel Agent, the defendant No. 4, to show that the seats were confirmed. Mr. Akhtar, also referred to computer printout Exhibit P/8, issued by the defendant No. 2, Emirates Airlines, at the Check-in counter, at Quaid-e-Azam International Airport (QIP), Karachi, to demonstrate that the reason assigned for denied boarding was "there is no 72 hours prior reconfirmation before the flight".
13. It was urged by Mr. Akhtar Hussain that, the tickets were issued on 13.4.1999 for seats booked for the following date i.e. 14.4.1999 there was no occasion or need to insist on 72 hours prior confirmation.
14. He urged that, the stand taken by the defendant No. 2, are contradictory' To elaborate his point, he referred to stance taken in the reply to the plaintiffs legal notice (Exhibit P/35, available at page 105 of the Evidence File). In reply it was stated:- "Your client did not have confirmation print out from British Airways and no booking appeared on the system also. It was for the reason alone your clients were not boarded on the flight alleged.
15. They waited to travel.
16. Kindly note that no passenger can be allowed to travel out of Pakistan without having onwards booking and in the case of your client no such booking existed."
17. "However, there was no reservation confirming the seats on the Flight No. EK603 for 14.4.1999."
18. Mr. Nizam A.I Khan, learned counsel appearing for defendant No. 2, the Emirates Airlines, contended that, the claim in suit is covered by Carriage by Air Act, 1966 based on Hague Convention. He further urged that there is no privity of contract between the plaintiff and the defendant No. 2; liability if any is that of the British Airways, who issued the Ticket for the entire journey. He further pointed out that, even if the seats were confirmed, then also, Emirates Airlines were not obliged to allow boarding, unless 72-hour prior confirmation was there. According to him, in cross- examination, plaintiff had accepted that the reservation was made 15 days before travel; therefore, 72 hours prior confirmation was necessary. He has relied upon unreported judgment of the Lahore High Court in R.F.A. No. 745/2001 titled as Emirates Airlines v. Daud Shamsi. In said case, the Trial Court decreed the claim on account of denied boarding; however, in Appeal the judgment and decree passed in the suit was set aside on the ground that no evidence was produced to substantiate damages and the suit was dismissed.
19. I had the benefit of hearing the argument of all the learned counsel, examined the evidence and gone through the law cited.
20. Admitted facts as emerged from the evidence appear to be that, the subject tickets were issued on 13.4.1995 for 14.4.1995. Defendants' Nos. 3 and 4 the IATA approved Travel Agents issued the subject tickets, both on the format and in the jacket of British Airways. It is also not disputed that British Airways do not operate in Karachi-Dubai Sector. Reservations of seats on said sector were made on the Emirates Airlines. Defendant No. 4 the Travelling Agent did not deny having issued confirmed ticket. In fact, the defendant No. 2 in reply to the legal notice took up the defence that the plaintiffs were denied boarding, as "they had no onwards booking from Dubai to London". Such plea was later abandoned. Position adopted in statement was that "plaintiff did not have confirmed O.K. Seat on flight in question" both the pleas could not be substantiated in evidence. On the contrary the defendant No. 1, admitted in written statement that, plaintiff and his son had reservation on its flight from Dubai to London and onward. However, since the plaintiff and his son did not turn up at Dubai Airport, the flight had to depart without them. Defendant No. 1 produced copies of PNRs as Exh.D-1/2 to D-1 /5 to support their assertion.
21. The defendants did not dispute PNR (Passenger Name Record) Exhibit P/7 and P/8 respectively. The witness of the defendant No. 2, initially disputed the PNR numbers, but in cross-examination by the defendant No. 4, the witness stated, "The PNR B56 D7S referred in Exh.P/15 was issued by us.
22. Voluntarily states that "The said PNR number was generated automatically when defendant No. 4 made booking for Dr. Haroon Ahmed on Amadeus System". Accordingly I also accept the PNR number". In view of the foregoing, there remains no doubt that; the plaintiff possessed confirmed tickets for himself and for his son for the entire journey originating from Karachi on 14.4.1990 to USA via Dubai - London - Boston - Indianapolis - New York - London - Muscat - Karachi.
23. ISSUE NO. 2: Burden of this issue lays upon Emirates Airlines the defendant No. 2 on whose carrier; the plaintiff and his son were booked for 14.4.1999. Examining the defence of defendant No. 2. On this issue, it appears that shifting stands were taken firstly, in reply to legal notice, it was asserted that the plaintiff had no onwards confirmed booking for Dubai to London and that the plaintiff had no confirmation. In the written statement it was, however, asserted that, there was no 72 hours prior reconfirmation. Mr. Nizam A.I Khan, learned counsel' relied on Condition No. 9 appearing on the Jacket of the ticket, which reads as follows:- "Carrier undertakes to use its best efforts to carry the passenger and baggage with reasonable dispatch'. Times shown on the flight coupons of this ticket are not guaranteed and the Carrier assumes no responsibility for making connections. Carrier may without notice substitute alternate carriers or aircraft, and may alter or omit stopping places shown on the ticket in case of. Necessity.
24. Schedules are subject to change without notice."
25. Mr. Dara S. Shaikh, learned counsel for defendant No. 4 contended that there is no requirement for reconfirmation when travelling with Emirates Airlines, except between Dubai and the Damam, Jeddah, and Riyadh. He, therefore, contended that of 72-hour prior confirmation as urged by Mr. Nizam A.I Khan could not be sustained.
26. Examining the evidence on the issue, the witness of Emirates Airlines, Muhammad Ashher in cross- examination stated:-- "I see Exh. P.5 which is Airlines ticket by the British Airways for the plaintiff in respect of Flight No. 603; it was confirmed reservation for Karachi-Dubai and also for Dubai-London on BA 106 and for London-Boston BA 213. However, Exh.P/5 does not bear Computer number. Flight No. 603 is of Emirates Airlines and Flights No. 106 to No. 213 are Flights of British Airways. I see air line ticket Exh.P/6 which are in the name of Irfan Haroon the sort of the plaintiff and he was having confirmed reservation as per the ticket on the aforesaid flights numbers as of plaintiff. Both these tickets were issued on 13th April, 1999. I see Exh.P/7 which is a computer slip which shows re-confirmation of seats on EK 603 and so also of BA 106 and BA 213. This computer slip is with regard to the ticket of Haroon Ahmed................. Exh.P/8 was given by my counter staff to the plaintiff and his son. Exh.8 is information that the reservation of plaintiff and his son is cancelled as those were not reconfirmed seventy two hours prior to schedule time. Voluntarily say that Exh.P/8 is in respect of the plaintiff. Further states as per computer slip Exh.P/8 lrfan Haroon was not confirmed onwards British Airways flight as per Emirate Airlines Reservation system for British Airways."
27. The witness in response to cross-examination to counsel for British Airways further deposed:-- "Airline Ticket is ordinarily to be reconfirmed within 72 hours of the schedules flight. If the ticket is issued within 72 hours of the flight it is to be reconfirmed on the spot . . . . We have I.A.T.A. Approved Agent. I know defendants Nos. 3 and 4 are IATA approved agents . . . . It is fact that there is no requirement of reconfirmation of the airline ticket by some Airlines, including Emirates Airlines."
28. High Contracting States adopted Warsaw Convention held in Warsaw on 12 October, 1929, aimed at unification of law relating to international carriage by air. In territories now comprised of Pakistan, the Convention was transformed into municipal law in terms of "The Carriage by Air Act, 1934:. The Warsaw Convention was later on amended in a conference held at Hague on 28th September, 1955, known as Hague Protocol, 1955. The Protocol to Warsaw Convention as amended at Hague was enacted in Pakistan on 18th June, 1966, under Carriage by Air (International Convention) Act, 1966, thereby replacing Act of 1934 with certain reservation. Schedule 1 to the Act of 1966, sets out the full English text of the amended Protocol, it applies to all international carriage of persons, luggage or goods performed by the air carrier either for the reward or gratuitous. The Warsaw Convention was adopted and transformed into municipal law by the High Contracting States, including Pakistan. The Convention was adapted to foster unification of the law relating to international carriage by air and to avoid the difficulties that may be encountered by the conflict of laws in action arising out of the contract of carriage by air whether within or outside High Contacting States. The Convention as adopted, set out the liability of the carrier for the injury or death of a passenger or loss or damage to the good or baggage during the carriage or by delay.
29. Like any other contract, contract of carriage, comes into existence by offer and acceptance. In terms of Rule 2(3) contained in the First Schedule of the Act, 1966, passenger's ticket constitutes prima facie evidence of the conclusion and condition of the contract of carriage. In term of Rules 32 and 33 the carrier may make regulation for the contract of carriage that may not be in derogation to the Rules. Any regulations made in violation of Rules to the extent of repugnancy are void A carrier enters contract of carriage of passenger when a passenger 'requests a reservation and carrier accepts by issuing a ticket. The air ticket contains some of the terms of the contract specifically and some are incorporated by reference. In the instant case it appears that, by reference, the Warsaw Convention as well as IATA General Conditions of Carriage, were made part of contract of carriage.
30. By virtue Rules 32 and 33 the carrier may make regulation for the contract of carriage by air, which may not be in derogation with the Convention. International Air Transport Association (I.A.T.A.) drawing authorization under Rules 32 and 33, after the Warsaw Convention, formulated standard and unified condition for carriage of passengers, goods and luggage. It appears that, General Conditions of Carriage of Goods, Passengers and Baggage known as I.A.T.A. General Condition of Carriage were adopted in the year, 1931. Such General Conditions are revised from time to time to meet the exigencies of the situation. I.A.T.A. Through Resolution 780, also adopted, 'I.A.T.A. Interline Traffic Agreement-Passenger'. It lays down uniform conditions, regulating sale of transportation over the routes of other air carriers. I.A.T.A. Resolution 780 was produced as Exh. D-1/6.
31. From the evidence that has come on record it appears that, the seats of the plaintiff and his son were confirmed and reserved/OK for 14.4.1999 on Emirates Airlines. It is not a case of 'No Show Passenger' that is, where a passenger for any reason is unable to take up the journey. To minimize the effect of 'no show passengers' most of the airlines including British Airways, follow a guided policy of overbooking or putting in other words, the airlines book chance passenger over and above the available and reserved seats. The chance passenger is offered seats where reserved passenger does not show or turn up for any reason within a reasonable time. However, in case of confirmed reservation, if a passenger turns up in time but is unjustly denied boarding-, compensation is usually offered, British Airways also follows such scheme. It is not a case, where the plaintiff was merely booked as a chance passenger, on the contrary it has come on record that, quite a few seats have gone unoccupied on the said flight. The witness of Emirate, in reply to a question by defendant No. 4 stated "the flight in question did not go full as far as I remember". In the light of evidence that has come on record and for the foregoing discussion, there remains no doubt that the flight of the plaintiff and his son was not cancelled for want of 72 hours prior confirmation but for extraneous consideration by the ground staff of the defendant No.2.
32. ISSUE NO. 3. As to first part of the issue burden was on the plaintiff to prove that on account of denied boarding, disease of the plaintiff aggravated and he suffered pain and mental agony. As regard second part of the issue as to "which of the defendants are responsible" I proposed to deal with while deciding issue No. 5.
33. It was the case of the plaintiff that he was suffering from trigeminal neuralgia. The ailment was detailed in Paragraphs 6, 7 and 8 of the Affidavit-in-Evidence. It was stated that on account of denied boarding by the defendant No. 2, plaintiff suffered not only pain and agony but also faced humiliation as the incident was also widely reported in the Press. Copy of such News Report has been produced as Exhibit P/17. In support of his claim, plaintiff produced the certificate from the 'Agha Khan University Hospital, Karachi dated April 5th, 1999 (Exh.P/1). Copy of the letter addressed by Dr. Shaheen H. Mian (Exh.P/3) and a fax message (Exh.P/4) confirming the appointment with Dr. Earnest Mathews was also produced. The plaintiff was extensively cross-examined. In cross- examination, he had stated that the staff of defendant No. 2 was informed that he is in great pain and seriously ill but he was not 'accommodated. Neither the defendant No. 1 nor defendant No. 2, on the issue of plaintiffs' ailment or aggravation of disease, challenged his statement on Oath.
34. Though in cross-examination by defendant No. 4 plaintiff had stated that "I had informed of my medical condition to the defendant No. 4 through E-Lilly but it was not in writing. 1 was not booked as a sick passenger but I presume so for the reason that two persons from the handling department of defendant No. 4 had come at the airport to facilitate me". Neither the defendant No. 1 nor the defendant No. 2 challenged such statement nor disputed the stance of the plaintiff as to his ailment or aggravation of his disease. Plaintiff evidence on the issue had gone un-rebutted.
35. Plaintiff has, brought on evidence his medical record to show that he was treated in New York (refer Exh.P/23 to P/39), before Dr. Methew, could treat him at Massachusetts General Hospital in Boston, USA. To a question of Mr. Nizam A.I Khan plaintiff deposed:-- "I have been frequently travelling abroad I am therefore generally aware of the terms and condition of the air travel. At the airport, at the time of checking in I had informed the staff of the defendant No. 2 that I was in great pain and seriously ill and therefore I may be put on board voluntarily stays that I had also informed that my air ticket was made only on the previous day i.e. 13.4.1999 and therefore there was no question of obtaining reconfirmation thereof 72 hours before the date of fli.Ght."
36. Apparently on account of aggravation of plaintiff ailment, he had to seek an appointment for his treatment from another Doctor in New York. Plaintiff produced documentary evidence alongwith his Affidavit-in-Evidence to snow that, he was treated at Hospital in New York, which evidence has not been disputed or challenged.
37. As regard suffering mental agony, pain and humiliation. It may be observed, are all state of mind and a person who had undergone such experience is best judge of such state of mind which can be proved by giving account of events, happening and wrong that may yield such adverse impact on ones mental state and mind. A wrongful, negligent or offending act may cause and result in injury, discomfort and inconvenience, in turn the wrongdoer, elequent and offender as a consequences becomes liable to face, bear and make good the loss, injury or inconvenience. The plaintiff in his plaint as well in affidavit in evidence stated that when he was denied boarding by the defendant No. 2, he "had to return home with grave trigeminal pain and agonies". In paragraph 14, he stated; "That on account of denied boarding illegally by the defendant No. 2 on 14th of April, 1999, I had not only suffered huge additional expenses and loss of professional 'practice. Also gone through grave pains and mental agonies, humiliation and defamation, due to the acts of the defendants, my disease was also aggravated". Such positive assert on oath was not challenged. A person of plaintiffs stature, who is a doctor, a senior Professor of Psychiatry, President of Pakistan Association of Mental Health, besides holds distinguish positions in various governmental and nongovernmental organizations. He was suffering 'trigeminal neuralgia' was all set to proceed for treatment abroad. He had fixed an appointment for treatment with Dr. Methew on 16th April, 1999. A person of plaintiffs standing all set and prepared to proceed abroad for treatment when reports at the check-in counter out of the blues is confronted with a situation that he cannot be allowed boarding for' non-confirmation o seats 72 hours prior to flight. Any person what to speak of plaintiff, naturally would be shocked, mentally disturbed undergo mental pain, agony and be frustrated, being helpless. The intensity of suffering multiplies when it is known that the refusal to allow boarding is unjustified and without any reasonable cause, Defendants Nos. 1 and 2 also did not challenge the claim of the plaintiff made on oath that, on account of denied boarding he also suffered pain, agony and humiliation. Under given facts and circumstances there is no reason to believe the plaintiff.
38. The issue is therefore, answered in affirmative. ISSUE NO. 4: As regard losses sustained, plaintiff has prayed for a decree of Rs. 10 Million. Breakup of such claim is found in para 15 where under plaintiffs claimed to have incurred additional expense of Rs. 15,00,000/- for the travelling, boarding, lodging of his son and wife, and his treatment. Plaintiff claims damages and compensations for the grave physical pain, mental agonies and even humiliation and defamation in the sum of Rs. 10 million jointly and severally against the defendants.
39. Section 73 of the Contract Act, is instructive to assess the damages caused on account of breach, which naturally arose in the usual course of the event out of breach of contract or for the failure to discharge obligations resembling those created by the contract. However any remote or indirect loss or damage sustained by reason of such breach are not favoured by law. Illustration (r) to Section 73 is quite illustrative in the context of the case as regard claim of refund of 'air fair as well as consequential loss suffered on account of denied boarding; it reads as follows:- "(r) A, a ship-owner, contracts with B to convey him from [Karachi] to Sydney in A's ship, sailing on the first day of January, and B pays to A, by way of deposit, one-half his passage-money. The ship does not sail on the first of January, and B, after being, in consequence detained in Karachi for some time and thereby put to some expense, proceeds to Sydney in another vessel, and,' in consequence, arriving too late in Sydney loses a sum of money. A is liable to repay to B his deposit, with interest, and to expense to which he is Put by his detention in Karachi and the excess, if any, of the passage money paid for the second slip over that agreed upon for the first, but not the sum of money which B lost by arriving in Sydney too late." (Underlined for emphasis)
40. Plaintiff as discussed above, was suffering from 'trigeminal neuralgia'. Evidence that has come on record tends to show that he had an appointment with Dr. Earnest Methew on 16.4.1999. On account of denied boarding, he could not undertake journey to Boston, America as such could not get treatment on the given date and time, Since his disease aggravated as an urgent measure, plaintiff's son Irfan had to travel on 18 April, 1999 for making alternate arrangement in USA and since Dr. Earnest Methew was not available for about another month. The plaintiff had to undertake travel with his wife as an attendant for treatment at New York. Plaintiff had to undergo the treatment at New York, USA before he could receive final consultation and treatment with Dr. Earnest Methew in Boston, USA on 24.5.1999. Claim of the plaintiff on this issue was not controverted. There remains no doubt that the plaintiff had suffered loss on account of denied boarding. As to the quantum of damages or loss, it may be observed that no wrong is without redress.
41. Plaintiff has produced following statement of claim as Exh.P/32.
42. STATEMENT OF EXPENSES ADDITIONALLY INCURRED BY DR. HAROON AHMED DUE TO DENIED BOARDING.
43. 1 Air ticket of Mrs. Anis Haroon Rs. 3,500/- 2 Expenses on stay of three persons in New to 10th May, 1999. Stayed as paying guest $100 per person per day $3100x20$6000/- Rs. 3,00,000/- 3 Misc. Travelling expenses $5000/- Rs. 2,50,000/- 4 Various consultation at New York $ 1500/- Rs.75,000/- 5 Procedure and hospital expenses $10, 000/- Rs. 50,000/- 6 Travel to Chicago and back to New York $1,000/- Rs. 50,000,/- 7 Travel to Boston for consultation with Dr. Mathews$500/- Rs. 25,000/- 8 Week stay at Boston $2,000/- Rs. 100,000/- 9 Consultation and other expenses $500/- Rs. 25,000/- 10 Travel back to New York for post procedure check-up$500/- Rs. 25,000/- 11 Week stay at New York $2,100/- Rs. 1,05,000/- York Loss of professional medical practice for one month Rs.1,00,000/- Now examining the evidence produced in support of the expenses claimed above. As regard ticket of Mrs. Anis Haroon, plaintiff produced copy of the .Ticket as Exh.P/10 and voucher from the travel agency for Rs. 85,000/-. It was not disputed that she did not travel as an attendant to the plaintiff.
44. Item No. 2 relates to expenses for the stay in New York in the sum of US$ 6,000/-, no voucher or bill for the lodging and boarding were produced, such claim, in absence of any evidence cannot be allowed. Third head of account is for miscellaneous traveling expense, in the sum of USS 5,000/- for almost 20 days stay. Such claim appears to be overstated in this head 1 allow only US$ 1,000/-.
45. Under 4th head of account, plaintiff claimed US$ 1,500/- on account various consultation at New York, but the learned counsel submitted that, in fact plaintiff Exh.P/21 for US$ 1378.28 Exh.P/22 for USS 550.64 Exh.P/23 for US$ 2350.00 Exh.P/24 for US$ 2350.00 Exh.P/25 for USS 300.00 Total: US$ 6928.00 Said invoices support claim, it were not challenged, claim is therefore allowed. Under 5th head of account i.e. Procedure and hospitalization, a receipt/invoice of 'Our Lady of Mercy Hospital Center, New York was produced as Exh.P/29 for USS 10,000.00. The invoice or treatment was not disputed. It is accordingly allowed. The expenses shown at serial number 5 to 17 are the expenses in respect of treatment given by Dr. Methew. When Mr. Akhtar Hussain, Advocate for the plaintiff was confronted that such treatment and expense the plaintiff was otherwise bound to incur, he fairly conceded that said claim might be kept out of consideration. Under circumstances the expenses incurred by the plaintiff on treatment given by Dr. Methew are disallowed. As regard last item i.e. Loss of professional medical practice for one month. Claim for the loss of practice cannot be allowed for the reason firstly that, no evidence. Was produced to show what was the income of the plaintiff that he lost. Secondly, on the own showing of the plaintiff, he was suffering from ailment he could not have carried out his practice during period of his ailment. There was no evidence that had he received the treatment in time he could have resumed his work early.
46. Looking at the evidence produced, it appears that the plaintiff incurred additional expense for the travel of his wife Mrs. Anisa Haroon, in the sum of Rs. 85,000 who accompanied him as an attendant; her name appears in number of medical invoice. A sum of Rs. 79,335/- on account of plaintiffs ticket and Rs. 79,335/0 on account of air fare of his son Irfan Haroon and US$ 17,928/- on account of medical treatment before he could get treatment from Dr. Methew. Total claim in Pak amount is Rs. 2,43,670/- plus expenses in America comes to US$ 17,928.00 to which the plaintiff is entitled on account of special damages/pecuniary loss he in actual suffered.
47. Adverting to non-pecuniary loss, plaintiffs' case is that he is a doctor and a senior Professor of Psychiatry, renowned nationally and intentionally for his philanthropist work. Plaintiff claimed to be suffering from trigeminal pain had sought an appointment with Dr. Methew for 16.4.1999, was booked through Emirates for 14.4.1999, when reported at the check-in counter was declined boarding unjustly for extraneous consideration. His condition aggravated and he had to seek alternate medical treatment. The incident was also reported in widely circulated English Daily Dawn. While deciding issue No. 2 it was held that the plaintiff and his son were denied boarding, not for want of 72-hour prior confirmation but for extraneous consideration. The liability of a wrongdoer to compensate the injured is correlated to the duty he owes to other and where failure has occurred in performance or discharge of such duty or obligation or where for his act of omission and commission, other suffers. In the instant case, the ticket with confirmed reservation was issued.
48. International Contract of Carriage by air came into existence. When. a confirmed ticket is issued it imposed a duty and obligation on the air carrier to, carry the holder of a ticket to, the contracted destination on the date and time as was specified therein. A carrier failing in its obligation to carry a holder of valid and confirmed ticket, without any just cause expenses himself to all the peril and consequence, may it be under the Warsaw Convention, law of the land or contract of carriage, or even tort as the case may be. Any person who is denied boarding, without just cause is bound to suffer financial loss beside mental stress, agony pain frustration and lot of inconvenience and humiliation. In the instant' case, on account of denied .Boarding, the plaintiff who was a sick person and had to obtain treatment abroad was certainly to suffer mental agony, distress and pain beside inconvenience. Such suffering are the direct result of unjust denial and refusal to carry the plaintiff by the defendant No. 2. Where such suffering is a direct result of the act of omission or commission of wrongdoer and for failure to perform obligation under a international contract of carriage by air, the one who is denied boarding and is wronged is entitled to be compensated. In a case reported as Pakistan Airlines Corporation (1996 CLC 627) also, the plaintiff therein claimed refund of unutilizec flight ticket and damages on account of mental torture and agony together with loss of business. This Court while repelling the arguments of the PIA that, there was no physical injury to go with the plaintiffs avowed shock, torture and agony, held that "such factor, at best may be reckoned to aggravate and compound the claim and effect the quantum of damages rather its bare entitlement".
49. As to what should be the compensation in such cases, guidance is drawn from the observation made in the case of Muhammad lshaq (PLD 1996 SC 737), at page 745 it was held:-- "There is no yardstick to define principle for assessing damage in such case. The damage is meant to compensate a party who suffers an injury. It may be bodily injury loss of reputation, business and also mental shock and suffering. So far nervous shock is concerned, it depends upon the evidence produced to prove the nature, extent and magnitude of such suffering, but even on that basis usually it becomes difficult to assess a fair compensation and in those circumstances it is the discretion of the judge who may on fact of the case and considering how far the society would be deemed it to be fair sum, determine the amount to be awarded to a person who has suffered such damages. The conscience of the Court should be satisfied that the damages awarded would, if not completely sufficiently compensate the aggrieved person."
50. Keeping in view the condition of the plaintiff, who was already a patient of trigeminal neuralgia on account of aggravation of his ailment and non-availability of treatment in Pakistan, had appointment in USA, was denied boarding the suffering and pain can very well be imagined. He had to wait for one month before he could seek treatment from Dr. Methew. In between, he had to suffer pain and undergo treatment from other doctor. Keeping in view, the status, position and medical condition of the plaintiff in sight, in my opinion a sum of US$ 500/- per day for 30 days, would be a reasonable and fair compensation for denied boarding and breach of international. Contract of carriage by air.
51. ISSUE NO 5: Now adverting to more onerous task of determining firstly the liability if any of the air carrier in case of denied boarding and secondly as to which of the carrier could be held liable in case where more than one carrier is involved in contract of carriage.
52. Adverting to first aspect of the issue, liability of carrier as regard the passenger under the Convention, as adopted through Act of 1966, is limited to certain specified .Incidence, occurrence or act of omission and commission on the .Part of carrier or their servants and agents. Statutory liability of a carrier, extend to damage that, may be sustained in the event of (i) death, (ii) wounding or (iii) any other bodily injury suffered by the passenger. Provided specified incidence, occurrence or happening took place on board of the aircraft or in the course of any of the operation of embarkation or disembarkation and for the (iv) damages sustained by the delay in carriage by air of the passenger (See Rule 17(1) and 19). The specified incidence, occurrence or happening may be referred to as "statutory wrong" which entails "statutory liability" in term of Rule 22 up to a maximum limit of 250,000 franc. However, where it is proved that, damage has occasioned from the act of omission either of the carrier or, of his servants or agents done with intent to cause damage or recklessly with knowledge that damage would probably result, then limit of liability could not be availed.
53. An air carrier may seek exoneration from liability under the Convention, or putting in other words, under the Convention an air carrier may avail of following "statutory defense" against any claim arising out of "statutory wrong":-
(1) The carrier and his servants or agents have taken all necessary measure to avoid the damages or that it was impossible for the him or them to take such measure, (Rules 20 and 25-A).
(2) Carrier may be relieved or absolved of the liability or even it may claim mitigation in case negligence or the contributory negligence on the part of injured person as the case may be is proved, (Rule 21).
(3) Where the claim of damage is not brought within 2 years from the date of cause of action as specified in Rule 29.
(4) In case where Carriage is to be performed by various successive carriers, then the carrier who accepts the passenger or baggage or goods may only be liable and other carrier may seek discharge unless otherwise provided in the contract of carriage, [Rule 30(2)].
54. Burden to prove that such statutory defence or protection is attracted is always on the carrier. In the instant case the defendant No. 2 did not claim protection of any of the above statutory defences, but the defendant No. 1 indeed took refuge and protection of Rule 30(2).
55. As regard the liability toward the passenger, the 1st Schedule of the Act of 1966, determines the question of liability and the 2nd Schedule, the person by whom and to whom the liability is owned.
56. The provisions of the Convention as adopted by the High Contracting State tend to ensure that_ the liability of carrier is governed by the terms of the Convention as adopted and reflected in municipal laws of each High Contracting parties (i.e. Ratifying State). In view . Of such adoption of convention by Pakistan, in terms of Rule 22, to the 1st Schedule, limit of financial liability for each passenger in respect of "statutory wrong" may extend to a sum of 2,50,000/- Francs. Nevertheless, by special contract, the carrier and the passenger may agree to a higher limit of liability.
57. Conversely however is not true, no contract to relieve the carrier of the liability or that tend to fix lower liability can be sustained.
58. The carrier even by contract cannot exclude or limit its liability, if the damage is caused by the wilful misconduct or by such default as is in the opinion of the Court, equivalent to wilful misconduct either on the part of the carrier or any of his servant or agents. Provided the servant or the agent did such act within the scope of employment or agency as the case may be. There is no reason why the defence akin to the statutory defence, as discussed above, could be availed of in cases where the wrong could not be classified strictly with in the ambit of "statutory wrong" as defined under the Convention.
59. The closest of the liability that may clinch on the air carrier, in the instant case is delay. Delay within the contemplation of the Convention is provided for in Rule 19; of the Act of 1966, which runs as follows:-- "The carrier is liable for damage occasioned by delay in the carriage of passenger, luggage or goods."
60. From bare reading of above, it implies that consequence for the delay follows, where the carrier though carried the passenger, luggage or goods contracted but the delay occurred in such exercise of carriage by air. Above quoted Rule does not contemplate the delay on account of denied boarding or failure of the, carrier to carry the passenger, luggage or goods at all.
61. From the scheme of the Convention as well as the Act of 1966, it appears that cases of breach of contract of the kind in hand are not contemplated therein. This it does not mean that where a wrong done, breach committed or injury inflicted is not within the contemplation of the Convention and the Act of 1966, the carrier is absolved of any liability, aftermath or consequence. Applying age old legal maxim "ubi jus ibi remedium" (When there is right there is remedy). As to "statutory wrong" the Convention provides complete code as to rights and liabilities both of the carrier and the passenger. However, any wrong, breach or mischief not within the contemplation of the Convention or the Act of .1966, same could be redressed either under law governing contract, in case of Pakistan under the Contract Act, 1872, or general law or even in appropriate cases under Tort. This view finds support from the case reported as Pakistan Airlines Corporation (1996 CLC 627). This Court maintained award of damages on account of breach of contract of carriage for the fault of clerk of PIA who had torn the relevant coupon of the ticket and the passenger was left in lurch in another High Contracting State (India). In a case from American jurisdiction cited by Mr. Akhtar Hussain cited as Ralph Nader v. Allegheny Airlines Inc. (426 US 290), plaintiff in said case, denied boarding, declined to accept 'denied boarding compensation' fixed under regulations of Civil Aeronautics Board and instead brought suit in US District Court asserting in addition to statutory cause of action under the Federal Aviation Act as vvell, a common law tort action based on fraudulent misrepresentation arising from airline's alleged failure to inform him in advance of its deliberate over booking practices. District Court allowed compensatory and punitive damages. The US Courts of Appeal reversed the finding, holding that common law tort action is not available and sent the matter to the Board of determination whether the non-disclosure of over booking is within the preview of Federal Aviation Act. On Certiorari, the US Supreme Court expressed unanimous view, that the plaintiff's common law action cannot be stayed pending reference to the Board.
62. Where a carrier, his servant or agent disembarks a passenger or wrongfully denies him to board or embark, as happened in the instant case, the air carrier could be held liable for failure to carry the passenger by air at all and so also consequences for the delay arising therefrom. The air carrier as a rule will be liable to a refund the fare and so also damages and any incidental loss or expense and excess amount of fare, if any, paid to another carrier to reach the destination. (See Section 73 of the Contract Act, particularly illustration [r] thereto).
63. As discussed above, the Convention is silent, as regard liability of air carrier for the breach of contract of carriage. By this, it does not mean that, air carrier is rendered absolved of all the liability in cases of breach of contract, occurrence of any wrong other than "statutory wrong", such would be anomalous position, there is no wrong without a remedy. Where any injury is caused or loss occurs during the course of or in furtherance of carriage by air that ma'' not be within the contemplation of Convention, a passenger, consignee or any other person will always have a remedy against the carrier. Where statutory liability of air carrier under the Convention terminates, realm of general law governing contractual obligation begins or where no remedy under general law of contract is available remedy under tort may be extended provided a case is made out.
64. After examining liability statutory and otherwise of the air carrier generally under the scheme of the Convention, Act of 1966 and general law. I propose to examine the liability of air carrier in case of international carriage by air, where more than one carrier are involved in the carriage by air operation. Such prospective is contemplated under the Convention and Act of 1966.
65. Provision regulation international carriage by successive carrier is contained in Rule 1(4) and Rule 30, for the benefit of appreciation same runs as follows:- Rule 1(4) Carriage to be performed by several successive air carrier is deemed for the purposes of these rules, to be one undivided carriage if it has been regarded by the parties as a, single operation, whether it had been agreed upon under the form of a single contract or of a series of contracts, and it does not lose its international character merely because one contract or series of contract is performed entirely within the territory of the same State.
66. Rule 30. (1) In the case of carriage to be performed by various successive carriers and falling within the definition set out in sub-rule (4) of rule 1, each carrier who accepts passengers, baggage or goods is subjected to the rules set out in this Schedule, and is deemed to be one of the contracting parties to the contract of carriage insofar as the contract deals with that part of the carriage which is performed under his supervision.
(2) In the case of carriage of this nature, the passenger or his representative can take action only against the carrier who performed the carriage during which the accident or the delay' occurred, save in the case where, by express agreement, the first carrier has assumed liability for the whole journey.
(3) As regards baggage or goods, the passenger or consignor will have a right of action against the first carrier, and the passenger or consignee who is entitled to delivery will have a right of action against the last carrier, and further, each may take action against the carrier who performed the carriage during which the destruction loss, damage or delay took place. These carriers will be jointly and severally liable to the passenger or to the consignor or consignee.
67. Article 1 - Definition 1.1 "Airline, Carrying" is a party hereto over whose routes a passenger and his baggage are transported or are to be transported.
68. 1.3 "Airline, Issuing" is a party thereto which issues a ticket or miscellaneous charges order for transportation over the routes of another party(ies) to this agreement.
69. 1.21 "Passenger" is a person to whom a ticket covering through transportation over the service of two or more parties hereto has been issued.
70. 5.2.2 The carrying airline, as principal,, indemnifies the issuing airline, including its officers, employees or agents, as agent, from and against all claims, demands, costs, expenses and liabilities arising from the carrying airline's provision of or failure to provide carriage pursuant to any ticket or MCO properly issued, completed or delivered by the issuing airline, provided however no such indemnity shall apply in the event of termination of the issuing airline's right hereunder due to said airline's involvement in proceedings declaring it insolvent, bankrupt or seeking relief under applicable bankrupt or insolvency laws, pursuant to 10.4.2. Here of.
71. Article 7 - General 7.1 Capacity of Issuing Airline. -- On issuing or completing tickets or MCOs for transportation over the routes of other parties hereto, the issuing airline shall be deemed to act only as an Agent of the carrying airline(s).
72. "An air carrier issuing a ticket for the carriage over the line of another air carrier does so only as an agent."
73. Above condition on the ticket is in consonance with Article 7.1 of the Inter-airline agreement, adopted through Resolution 780, as reproduced above. The condition is not found to be in derogation with the provisions of Rules 1(4) and 30 as reproduced above.
74. I do not see any reason not to apply the principle of liability or apportionment of liability of successive carrier in terms of Rules 1(4) and 30 of the Convention in cases of wrong that is not within the contemplation Convention, as is in this case of denied boarding. In a claim founded on the ground of breach of contract or denied boarding, the rights and obligations of the parties depend on the terms of contracts. Even otherwise both the British Airways as well as Emirates Airlines are party to Resolution 780 which binds them contractually. Once issuing air carrier issue a ticket for the carriage over the line of another air carrier, it does so only as an agent of the carrying airline, who for all intent and purposes is the Principal who is required to perform the contract of carriage. It then become a contractual obligation of Carrying/principal air carrier to honour the commitment under the contract of carriage, use reasonable care to carry the passenger without unreasonable delay.
75. ISSUE NO. 6: While deciding issue No. 5 reliance was placed on the IATA-Inter-airline Agreement- Passenger, (Exh.D1/6). It was observed that the British Airways acted as an agent for the Emirates Airline, in terms of Article 5.2.2 thereof. Therefore, the carrying airline, as principal, is obliged to indemnify the issuing airline or agents which includes travel agents, from and against all claims, demands, costs, expenses and liabilities arising from the carrying airline's failure to provide carriage pursuant to any ticket or MCO properly issued, completed or delivered by the issuing airline.
76. Indemnity is not available to the issuing Airline in case where the agency of the issuing airline stands terminated due to said airline's involvement in proceedings declaring it insolvent, bankrupt or seeking relief under applicable bankruptcy or insolvency laws, pursuant to Article 10.4.2 of the Inter-airline Agreement. No such incapacity as regard the defendant No. 1 was pleaded nor there is any material to infer the same. Even in terms of Section 222 of the Contract Act, Principal i.e. Emirates Airline would have been liable to indemnify the Agent i.e. British Airways against he consequences of all the lawful acts done during the course of the agency. It is no body's case that the British Airways had acted without or beyond the authority or acted negligently or fraudulently.
77. ISSUE NO. 7: In view of the foregoing, suit is decreed as against the defendant No.2, the Emirates Airlines in the following sum:--
(1) Reimbursement of fare of plaintiff's wife Mrs. Anisa Haroon, in the sum of Rs. 85,000/-. A sum of Rs. 79,335/- on account of plaintiffs ticket and Rs. 79,335/- on account of air fare of his son Irfan Haroon. Total claim in Pak amount is Rs. 2,43,670.00
(2) Plus expenses incurred in actual in America that comes to US$ 17,928/- on account of medical treatment before he could get treatment from Dr. Methew, on account of special damages/pecuniary loss.
(3) Plus General damages or non-pecuniary loss on account of physical and mental agonies humiliation and defamation are awarded in the sum of US$ 500/- per day for 30 days.
78. Suit stand decreed in the sums above with equalizer at the rate of 6% from the date of institution of suit till realization together with cost as against the defendant No. 2, the Emirates Airlines, whereas suit is dismissed as against the defendants Nos. 1, 3 and 4.