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Petitioner: Dr. NAHEED FATIMA and 3 others VS Respondent: Messrs PAKISTAN INTERNATIONAL AIR JUDGMENT
Court Name: Sindh High Court Judge(s): Mahmood Ahmed Khan Title:Dr. NAHEED FATIMA and 3 others vs Messrs PAKISTAN INTERNATIONAL AIR
JUDGMENT
Reported As: 2019 MLD 606 Result: Suit decreed Judgment JUDGMENT MAHMOOD AHMED KHAN, J.---This is a suit for recovery of damages/compensation. 2. The version of the plaintiff summarize to the required facts is that plaintiffs 1 is the widow, plaintiff No,2 is the adult son whereas the plaintiffs 3 and 4 are the minor son and daughter of the deceased Dr. Altaf Hussain, who died on account of Fokker Friendship Aircraft crash accident on 10.07.2006 due to willful misconduct reckless carelessness and gross composite negligence of the defendants. That the defendant No,1 is doing the aviation business in Pakistan as national flag carrier/national airline, running commercial flight operations for reward, representing itself of having the fleet of perfectly maintained/monitored and airworthy Aircrafts with skilled and competent pilots and offered the use of its fleet of Aircrafts for domestic as well as international flight services on commercial basis, continued under Pakistan International Airlines Act, 1956. The defendant No,2 is the statutory authority and a body corporate created and established under Section 3 of Pakistan Civil Aviation Authority Ordinance, 1982 [Ordinance XXX of 1982] for the promotion, control and regulation of civil aviation and to develop an infrastructure for safe, efficient, adequate, economical and properly coordinated civil air. transport services in Pakistan by exercising their powers and functions contained in the said Ordinance. 3. That as per schedule the deceased boarded along with other passengers on the ill-fated flight PK-668 bearing Pakistan Civil Aviation Registration AP-BAL, at Multan Airport at about 1200 hours on 10.07.2006 and was supposed to depart from Multan to Islamabad to have onward journey to Istanbul (Turkey) from there on his air ticket bearing No,214-2403057304 also issued by defendant No,l. After two minutes of taking off the said Aircraft crashed into a field in a bail flames at Basti
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Sooraj Mianee on the outskirts of Multan about 4/5 kilometer away from the Airport. A fire broke out after the crash and all bodies were charred beyond recognition and it was discovered that all the 45 passengers and crew members were found to have died on board including the deceased. The dead bodies of the victims got scattered throughout the area where the crash took place and corpses were taken to Nishtar Hospital Multan, where postmortems of all the deceased passengers were conducted and thereafter dead bodies were handed over to the legal heirs after identification for onward burial including that of the deceased. That the plaintiffs came to know through the daily newspapers about the version of the accident, which was reported in the media that the said aircraft tried to land in the field after developing an apparent technical fault, but due to flying at the low altitude at the time it struck against the high voltage electric wire strung across the field which burnt even the plants at the place of crash. Defendant No,2 Civil Aviation Authority (CAA) constituted an Accident. Investigation Board to carry out statutory probe into the crash of the said Aircraft. The said enquiry has been concluded, but at no stage the plaintiffs or their representative were called to be associated with the inquiry proceedings. That the defendants are withholding the findings including the record and proceedings of the said inquiry without any bona fide and justifiable reasons. That on the basis of representations made by experts and press reports in this regard that said Aircraft crash might have taken place due to high temperature coupled with high excessive cargo which must have caused the engine failure. It is also stated that defendant No 2 apart from defendant No, 1 is also guilty of non-feasane, misfeasance and malfeasance. That defendant No,2 absolutely neglected and failed to move the concerns- authorities to relocate either the HT wires or to place streamers on the wires which is a mandatory requirement under the Rules. Defendant No,2 also failed to ensure through its skilled and competent operation engineering personnel that airline operators like defendant No, 1 in the instant case are not flying over loaded airplanes and also that all electrical and other necessary equipment fitted in the airplanes function properly and such safety measures are managed by surprise and random inspections which was not done in the said aircraft. Defendant No,2 also failed to keep the landing and radar monitoring system in proper order as there was no checking of radar monitoring system and landing guidance system overdue. That quality of the flight checking and declaration of the airworthiness of the aircraft by the officials of the defendant No,2 was also questionable and was not reliable as the said officials responsible for such declaration lacked required qualifications for want of necessary flying training and as such if defendant No,2 would have thoroughly examined the airworthiness of the said aircraft in diligent manner, they would have managed to ground the said Fokker Aircraft in view of the past experience and history of faults in the said Aircraft. The FSD of defendant No,2 is responsible for ensuring flight safety compliance by all Aircraft in Pakistan Airlines by supervising plot training and quality control by defendant No, 1 and also inspection of airlines to ensure that airlines do not apply any short cuts to safe flying practice and do not compromise on the operational engineering aspects. That it is impossible to compensate the plaintiffs/legal heirs for the death of the deceased brought about by the sheer negligence and inefficiency of the defendants. The defendants should and are bound, however, under law to pay for their fault and for the irresponsible manner in which they ran their enterprises. That the deceased was a well-known psychiatrist at Bahawal Victoria Hospital Bahawalpur and posted as Assistant Professor and Head of Department, as such the plaintiffs have been deprived of the same and expected pecuniary benefits to an extent of Rs,159,091,976/-. The deceased was aged 47 years having robust health and used to care much for the plaintiffs and wanted to see them in a prosperous state. The plaintiffs are entitled for the cost of personal baggage including personal assets amount to Rs,8000/-, wrist watch Rado valuing Rs,22,000/-, mobile cell phone valuing Rs,12,000/- cash US $ 1600 (Pak Rs,97,600/- totaling sum of Rs,139,600/- which is also recoverable from the defendants being compensation. The losses of pecuniary
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benefits/ advantages which the plaintiffs had been deprived on account of negligence of defendants are assessed and evaluated on account of principles enunciated by the Superior Courts arising out of a claims under the Fatal Accidents Act, 1855 and while non-pecuniary benefits have been assessed on the premises of Common Law of Torts and other ancillary law available and applicable in such circumstances. The Plaintiff as such made out a statement of claim as under: STATEMENT OF CLAIM 1. Average life span in view of preponderance of Judicial Pronouncements70 years 2.Age of deceased at the time of death 47 years 3.Expected loss to the legal heirs/ plaintiffs for the remaining expected life of the deceased i,e, (70-47)23 years 4. Loss of pecuniary benefits at the rate of Rs, 19246/- per months (inclusive of pensioner), benefits) upto age of superannuation (60 years) on account of monthly salary (13 years) (19,246 x 12 x 13)Rs,30,02,376/00 5.Loss of pecuniary benefits at the rate of Rs,420,000/- per months based on private Practice for daily 35 patients at Rs, 400 per Patient for 23 years Sub TotalRs, 11,59,20,000/00 Rs, 11,89,22,376/00. 6.ADD 20% increase on account of chances of Increment in the aggregate income (Rs, 300,2376/00+11, 59, 20,000 = 118922376 x 20%) Gross Sub TotalRs, 2,37,84,475/00 Rs, 14,27,06,851/00 7.LESS Deduction 1/6th amount on account of Personal expenses(-) Rs,2,37,84,475/00 8.Net Loss of Pecuniary Benefits Rs, 14,27,06,851/- 23,78,475=Rs,1,89,22,376 (balance)Rs,11,89,22,376/ 00 9.FURTHER ADD Damages/Compensation on account of Professional calling, social position and loss of social capital by the aggrieved dependentsRs, 1,00,00,000/00 10.Damages in favour of widow/ plaintiff No, 1 For loss of association and lonelinessRs, 50,00,000/00 11.Damages in favour children (plaintiff Nos, 2 to .4) due to death Of their father resulting into loss of fatherly education, guidance, supervision, comforter and position in society Rs,50,00,000/00 eachRs, 1,50,00,000/00 12.Aggregate damages on account of nervous Shock and trauma suffered by the, plaintiffsRs, 50,00,000/00 13.Damages on account of personal baggage Including personal effects Rs,8,000/-, writs Watch RADO Rs, 22,000/-, mobile cell phone Rs, 12,000/- cash US$ 1,600/= (Rs,97,600/00)Rs, 1,39,600/00
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14.Funeral Expenses Total Sum Claimed Rs, 30,000/00 Rs, 15,40,91,976/00. Hence the plaintiffs filed this suit with the following prayers; a) A decree in the sum of Rs,154,091,976/- against the defendants jointly and severally to pay the said sum of damages/ compensation to the plaintiff or any other amount this Honourable Court may deem fit in circumstances of the case. b) Profit/markup at the rate of 21% per annum on of amount claimed in Clause (a) above from the date of the filing of the suit till the date of realization of the decretal amount which the plaintiff would have earned had the defendants paid the said amount. c) Cost of the suit may be awarded to the plaintiffs. d) Any other relief or reliefs that this Honourable Court may deem just and proper under the circumstances of the case be granted. 4. Defendant No,1 filed written statement objected to the proceedings on the ground that the plaintiffs admitted that their suit represents claims under Fatal Accidents Act, 1855 and the Common Law of Torts whereas the documents attached to the plaint confirm their awareness and knowledge of the Warsaw Convention as the applicable law, as such the suit is barred under the Carriage by Air (International Convention) Act, 1966. It is alleged that the deceased was survived by his mother, namely, Mst. Zainab Khatoon, who died almost nine months after the said accident, as such she was a legal heir of the deceased passenger having 1/6th share, and is herself survived by at least two sons, namely, Abdul Razzaq Ahmed son of Maula Bakhsh and Shafiq-ur-Rehman son of Maula Bukhsh and possibly other. children including daughters, but the plaintiffs have willfully concealed this important fact possibly with a view to monopolizing the damages claimed. It is admitted by defendant No,1 that deceased was an international passenger and his travel was regulated by the Warsaw Convention as amended at The Hague, which is applicable law in Pakistan. It is further stated that there was no lack of required maintenance or checkup of the aircraft, which was serviceable, airworthy and maintained according to applicable rules and regulations, as all pre-flight checks of the aircraft were carried out by the Aircraft Maintenance Engineers duly licensed for this purpose and a number of pre-flight checks were carried out by the Cockpit Crew, as such any violation as alleged of pre-flight inspection regulations is a malicious and sinister allegation. It is further stated that flight and duty times of the pilots are specified by defendant No,1 and regulated by defendant No,2 and there is no possibility that any airline can wrongfully compel its pilots to fly beyond the prescribed flight and duty time limitation. Defendant No,1 has denied all the allegations including the allegation of actionable wrong. It is, also denied that the plaintiffs are entitled to a claim of Rs,154,091,976/- from the defendants. Defendant No,1 prayed for dismissal of the suit. 5. Defendant No,2 also filed written statement and also objected to the proceedings on the ground that the suit is barred under the Carriage by Air (International Convention) Act, 1966. It is stated that application of scientific techniques of investigation, the eye-witnesses were also examined and the plaintiffs who were neither specialists nor the eyewitnesses, they were not involved in the process of investigation. The assertions of the plaintiffs that the aircraft while flying entangled with H.T. wires is contrary to the factually position as the flight path of the aircraft was absolutely clear of obstructions at the climb gradient. Defendant No,2 submitted that allegations made in the plaint against defendant No,2 are baseless and false, as such are denied and prayed for dismissal of the suit. 6. Issues-in the matter were framed on 06.12.2012 as following:-- 1.Whether the suit is maintainable under the Fatal Accidents Act, 1855 and Common Law of Torts?
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2. Whether the legal heirs of Mst. Zainab Khatoon wife of Mr. Maula Bakhsh are legal heirs of Dr. Altaf Hussain? If so, what are their respective shares? 3. Whether the death of the deceased Dr. Altaf Hussain aged 47 years was caused on account of the FOKKER Friendship Aircraft crash accident on 10.07.2006 due to negligence of defendants, if so, its effect? 4. Whether the defendant No,1 was guilty of an act or omission done with intent to cause damage or recklessly and with knowledge that damage would probably result? 5. Whether the plaintiffs are also entitled to 'No Fault Liability' amount as admissible under Sections 17 and 22 of First Schedule of Carriage of Air (International Convention) Act, 1966? 6. Whether the defendants are liable jointly and severally to pay compensation to the plaintiff, if so, to what extent ? 7. What should the decree be ? 7. The plaintiffs examined their attorney PW-1 Abdul Razzak, his affidavit-in-evidence was taken on record as 'O/1', he produced photocopies of air ticket as Ex.P-5/2, postmortem report dated 10.07.2006 as Ex.P-5/3, entry of register of deaths of UC No,3 as 'O/2', letter of Mr. Shafiqur Rahman brother of deceased dated 20.07.2006 as Ex.P-5/4, reminder letter dated 11.11.2006 Ex.P-5/5, certificate of Bachelor of Medical and Bachelor of Surgery issued to the deceased as Ex.P-5/6, Medical Registration Certificate of the deceased as Ex.P-5/7, degree of FCPS of the deceased Ex.P- 5/8, letter dated 30.04.2006 'O/3', order of posting of the deceased dated 08.04.2006 is 'O/4', certificate of experience dated 26.07.2006 as 'O/5', 'certificate dated 18.05.1993 to 14.06.1993 as 'O/6', letter dated 18.05.2006 as Ex.P-5/9, certificate as 'O/7', certificate of participation as 'O/8', another certificate as 'O/9', certificate of participation as 'O/10', letter dated 22.05.2006 as Ex.P-5/10, application as 'O/11', order dated 07.07.2006 as 'O/12, salary slip of the deceased as 'O/13', certificate as 'O/14', death certificate of Mst. Zainab Khatoon as 'O/15'. Plaintiffs also examined P.W.2 Dr. Muhammad Abdul Raziq son of Abdul Khaliq and Nasir Javed son of Saeed Ahmed. 5. Defendant No,1 examined DW-1 Martin Miles Mathews son of Wilfard, Senior Aircraft Surveyor, who produced his affidavit-inevidence as Ex:D/1, Letter of Authority dated 19.11.2013 as Ex:D/2, Resolution as Ex:D/3. Defendants, also examined D.W.2 Mansoor Ahmed Khan son of Sami Ullah Khan, Aeronautical Engineer, who produced his affidavit-in-evidence as Ex:DW/2, Letter of Authority as Ex:DW/3, Copy of Resolution as Ex:DW/4 and copy of written statement in Suit No,812/2007 as Ex:DW/5. Defendants also examined DW.3 Captain Tariq Khoso, who produced his affidavit-hi- evidence as Ex:DW/3, copy of Authority letter dated 06.02.2014 as Ex:DW/4. The said witnesses were cross examined by the other sides. 9. Learned Counsel for the plaintiff contends that the issue as to the maintainability already stands decided by order dated 27-5-2011 by treating the same as a preliminary issue on the application under Order VII, Rule 11, C.P.C. filed by the defendant No,1 by the findings in negative which has not been assailed as such it has attained finality. That as to the issue No,2 it is contended that it is unnecessarily framed however in case the mother of the deceased is found entitled, as she has since expired the 1/6th amounts available to her may be ordered to be distributed for the benefit of her legal heirs as tarka names of which are Given in the written arguments. The Rule 2 of second schedule of the Act, 1966 requires representation of the passenger by any person for benefit of the all as coming in the category of members classified therein. The same being a matter of non- joinder is not fatal to the plaintiff's suit. For the issues Nos,3 and 4 the evidence is relied upon contending that the portions not being challenged are liable to be entertained as such it is proved that the deceased was a renowned psychiatrist, the defendant No,1 being an international air carrier is liable to pay no fault liability, PIA District Officer Multan having offered in an intimidating and humiliating manner a sum of Rs,500,000/- to 2,000,000/-. That the defendant in any case is liable to pay 260,000:- Gold Francs to the families of each international passenger who died in the
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accident. That the defendants are duty bound to pay statutory compensation under "contract of carriage" and for this purpose insurance is made under Rule 199 of CAA Rules. That the crash of the aircraft took place because one of its two engines was not working. The deceased was drawing salary of 13,500 from government and the said salary has since increased 11 times along with his running the private clinic. That the onus of proof in respect of omission and recklessness is present with the defendants on account of Rules of the First schedule and a further reference is made to Article 119 of the Qanun-e-Shahadat Order, 1984, a case of special knowledge has been claimed in this regard. The evidence as brought up by the defendant has also been referred, claiming the same to-be without the required material. In this regard evidence as led by the defendants has also been relied upon specifically where one of the defendant witness admit the "crash of the Fokker aircraft took place after failure of its right engine. It is correct to suggest that the pilot came to know about engine failure while the aircraft was still on ground. It is correct to suggest that, the pilot had clear indication of .danger before takeoff". It is as such contended that the case of the plaintiff falls within the ambit of rule 25 of the first schedule whereby the limit/restriction as imposed by rule 22 (i) is not applicable as the pilot having clear indication of danger before take- off preferred for the same. It is further contended that required certificate of air worthiness and service is mandated by Rules 16, 17, Sub-rule (2) of Rules 18, 27, 27(g), 27(b) and 33 of Civil Aviation Authority Rule, 1994 has failed to be brought forward by the defendant No,l. Reference has been made to Rules 23(2), 165, 219, 220 and 225 contending that the pilot has failed to comply to the same. The investigation report has also been discussed and portions attributing faults and defects have been relied upon. Definition/s of the words recklessness and negligence has been relied upon. As to no fault liability it is claimed that that plaintiffs are entitled to amounts specified under Rules 17 and 22 of the first schedule of the Act, 1966 accordingly for loss of death and baggage. It is as such contended that as death being the maximum injury the whole amount of 260,000/- francs as provided in rule 22(1) is payable and rule 23(1) is relied in support as the same is restricting lower limit. That the plaintiff is also entitled to amounts as may be available under rule 25 wherein no limit is prescribed. As to the liability of the defendants jointly and severally for payment of compensation it is conceded that no liability is made out against defendant No,2 however as the liability of defendant No,1 the evidence is relied upon and it is further contended that the said defendant is liable to the quantum of compensation as referred earlier and considering the economic worth of the deceased to the plaintiff claimed in paragraph 26 of the plaint and in any case compensation cannot be less than current value of Gold-Franc 260000/- [260000 x 65.5 mgs of Gold] worked out on the basis of value of Gold on the date when the judgment is passed in addition to 21% markup from the date of filing of the suit till realization. being a contractual liability not honored. That the defendants has not taken the defense of "all necessary measures" and the report of crash has been relied claiming the same also establishes that that the crash was caused due to death on account of negligence and recklessness of the pilot. It is further contended that as the claim of the plaintiff that the deceased was earning Rs,420000/- per month has gone un- challenged the pecuniary loss comes to Rs,11,59,20,000/-, the same being quite realistic. The plaintiff also claims economic worth of the deceased and in this regard his having the position of Assistant Professor of Psychiatry at a medical Collage at Bahawalpur and having private practice while not taking non-practicing allowance and his monthly income brought up by two witnesses. It is further contended that another victim of the crash. Late Mr.Ejaz Ahmed belonging to Bunglow- Chawan District Kabeerwala being a Pakistani-Canadian National also travelling as an International Passenger to Canada was pad US Dollars 1.5 Million by way of out of court settlement on the claim of his wife namely Mrs. Mariannes Martines (Tel No, +011519-253-1814) living at 1713, California Avenue Windsor Ontario N9B 3T5 Canada and hefty amounts as such stood paid to his two brothers and three sisters in Kabeerwala has not been denied in the counter affidavit filed in
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this regard. That the claim of the plaintiff is covered by insurance as is required in mandatory form despite which the defendant No,1 wrongly protecting the interest of the insurance company has preferred not to entertain the claim of the plaintiffs. He has also relied upon the judgments 2016 YLR page 1832 (Jehanzeb Khan v. Government of Kyber Pakhtunkhwa through Chief Secretary and 14 others),, 2016 CLC 1936 (Hazoor Bakhsh and 2 others v. Mir Nasrullah Khan), 2016 PTD page 622 (Muhammad Hussain and others v. Pakistan the Secretary Revenue Division and others), 2009 YLR page 1408 (Abdullah through L.Rs and others v. Muhammad Ibrahim), PLD 1986 Supreme Court page 35 (Samar Gul v. Central Government and others), PLD 2003 Supreme Court page 102 (Muhammad Gulshan Khan v. Secretary, Establishment Division, Islamabad and others), PLD 2003 Karachi page 495 (Clifton and Defence Traders Welfare Association through General Secretary v. President, Clifton Cantonment Board Karachi and 4 others), 1983 CLC page 2054 Adam Hussain and another v. Muhammad Ayub), PLD 1995 Karachi page 603 (Mrs. Hajra Begum and 2 others v. Aga Khan Hospital, Karachi), 2008 MLD page 1310 (Mureed Fatima and 2 others v. Home Secretary, Government of Sindh, Karachi and others), PLD 2011 Supreme Court page 296 (Hafiz Tassaduq Hussain v. Lal Khatoon and others), PLD 2015 Supreme Court page 187 (Farzand Ali and another v. Khuda Bakhsh and others), PLD 2004 Supreme Court page 682 (Chief Engineer, Irrigation Department, NWFP Peshawar and 2 others v. Mazhar Hussain and 2 others), Australia Court of Appeal (SS. Pharmaceutical Co. Ltd. and another v. Qantas Airways Ltd) , Morris V KLM Royal Dutch Airlines (2001) EWCA Civ 790, PLD 1960 (W.P.) Karachi page 712 (Ursulina D'Lima and others v. Orient Airways Limited and another), 2000 SCMR page 1305 (Maulana Nurul Haq v. Ibrahim Khdlil), PLD 1978 SC (AJ&K) page 118 (Maj. Shujait Ali v. Mst. Surraya Begum) in support of his contentions. 10. On the other hand learned counsel for the defendant No,1 has referred to the Montreal convention and the Warsaw conventions, the applicable Act of 1966 and so also the subsequent Act of 2012 and to the French Francs and its conversion as practiced in different countries and SDR Value given thereto. It is contended that the claim of damages has to be substantiated by cogent and material proof. He has raised objection to the plaintiff herself has not appeared and that only a sum of Rs,13,000/- has been shown as income of the deceased. It is further contended that the suit as framed is not maintainable on account of failure of fulfilling the requirement of succession certificate and impleading of all the legal heirs being fatal as the same are required by the applicable law. That the accident at best may be called a matter of negligence, the same however cannot be said be based upon criminal negligence and that the recklessness as…
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