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Petitioner: Dr. Pro. HAROON AHMED VS Respondent: Messrs BRITISH AIRWAYS and 3 others
Court Name: Sindh High Court Judge(s): Mushir Alam Title: Dr. Pro. HAROON AHMED vs Messrs BRITISH AIRWAYS and 3 others Case No.: Suit No,530 of 2000 Date of Judgment:2004-03-03 Reported As: PLD 2004 Karachi 439 Result: Suit decreed
JUDGMENT
JUDGMENT 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. 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 philanthropic 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. 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. - Since the British Airways does not operate from Karachi, Plaintiff on account of alternate arrangement was 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-e-Azam 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. However, when computer slips showing confirmation of seats were shown, check-in staff of Defendant No,2
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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. 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 obtained appointment from another consultant in USA. Accordingly, the Plaintiff along with 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 plaintiffs were denied boarding to, accommodate some high officials who wanted 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 reliefs: (i) To declare that actions of the defendants Nos.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 & 112542407657556 are illegal and malafide 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. 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. 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. Defendant No,3, M/s. Passage Travels and Tours, who issued ticket to the Plaintiff, though served, chose not to defend. Defendant No,4, American Express Bank Limited, who issued ticket to the Plaintiff's 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 Plaintiff's reservation for Flight EK 603 had been cancelled for its non-confirmation within 72 hours?
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(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 EK 603 on 14-4-1999? 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? 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". 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. 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 plaintiff's legal notice (Exhibit P/35, available at page 105 of the Evidence File). In reply it was stated: "Your client did not have confirmation printout 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. they waited to travel. 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." In paragraph 2 of the written statement, stand taken was that:-- "However, there was no reservation confirming the seats on the Flight No,EK 603 for 14-4-99." In contra, Mr. Khalid Rehman, learned counsel appearing for Defendant No,1 contended that prima facie the tickets are to be seen, according to him, usually, the travel agents kept stock of blank tickets, issue tickets. It matters little, as to tickets of which of the Air Carrier are used for any sector. According to Mr. Rehman, different systems are in the field that maintains the record of issuance of such tickets and most popular systems are 'Amadeus' or 'Marketer' systems, which are used by the Emirates Airlines. He urged that, though the tickets, in the instant case, have been issued on the format and in the jacket of British Airways, yet under IATA General Conditions of Air Carriage, any Carrier issuing tickets for the carriage of passengers on any other air carrier, it does so only as an agent of the carrying airline. He admitted that the British Airways issued subject tickets on its format, for Karachi-Dubai Sectors, but the tickets were issued as an Agent of Emirates Airlines, who for all intents and purposes is the principal carrier for its Karachi-Dubai sector. He therefore, contends that, it is the Emirates Airlines that are bound to honour such commitment and likewise liable for any consequences that may arise out of issuance of such tickets. In support of his contention Mr. Rehman, has also drawn my attention to Article 7 of the IATA General Conditions of Carriage Exhibit D-1/6 (at page 153 of Evidence file). He further urged that, under Condition No,9 thereof, it is specifically provided that, boarding is not guaranteed for confirmed reservations. He further urged that standard policy of any Airlines is that, if a seat is available, then generally it is provided, even if there be no confirmed seat. He relies on Article 5.2.2 of the IATA General Condition
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of Carriage. Mr. Khalid Rehman alternatively argued that, even if this Court comes to a conclusion that, the Defendant No,1 is liable either jointly and /or severally then under Article 5.2.2. The Defendant No,2 is liable to indemnify the Defendant No, 1. He further draws support from Rule 176 Sindh Chief Courts Rules (0.S), where under an application seeking indemnity from against Defendant No,2 has been sought, reliance is placed on WAPDA v. National Insurance Corporation (1991 M LD 1090) and Muhammad Iqbal v. M.A Shirazee (PLD 1968 Karachi 1). Mr. Nizam Ali 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 RFA No,745/2001 titled as Emirates Airlines v. Daud Shami. 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. I had the benefit of hearing the argument of all the learned counsel, examined the evidence and gone through the law cited. 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 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 turned up at Dubai Airport, the flight had to depart without them. Defendant No,1 produced copies of PNRs as Ex D-1/2 to D-1/5 to support their assertion. The defendants did not dispute PNR (Passenger Name Record) Exhs.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 to in Ex P/15 was issued by us. Voluntarily states that "The said PNR number was generated automatically when defendant Nd.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 14-4-1999 to USA via Dubai-London- Boston-Indianapolis - New York-London-Muscat-Karachi. 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
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reconfirmation. Mr. Nizam Ali 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. Schedules are subject to change without notice." 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-hours prior confirmation as urged by Mr. Nizam Ali Khan could not be sustained. Examining the evidence on the issue, the witness of Emirates Airlines, Muhammed 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 a 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 is in the name of Irfan Haroon the son 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 reconfirmation 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 re-confirmed seventy two hours prior to schedule time" Voluntarily say that Ex. P/8 is in respect of the Plaintiff. Further states "as per computer slip Exh.P/8. Irfan Harooli was not confirmed onwards British Airways flight as per Emirate Airlines Reservation system for British Airways". 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 scheduled flight. If the ticket is issued within 72 hours of the flight it is to be reconfirmed on the spot.... We have IATA 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" 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 adopted 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 Contracting 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 goods or baggage during the carriage or by delay. 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
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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. By virtue of 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. IATA through Resolution 780, also adopted, `IATA Interline Traffic Agreement-Passenger'. It lays down uniform conditions, regulating sale of transportation over the routes of other air carriers. IATA Resolution 780 was produced as Exh.D-1/6, In all Contract of Carriage by Air, IATA General Conditions of Carriage are usually adopted by reference as a part of Contract of Carriage by Air. As noted above, in case any conditions is in violation of Rules or in case such conditions prima facie appears to be not attracted, adherence to such conditions cannot be claimed or enforced. Similac is the position with regard to the condition of 72 hours prior confirmation, as claimed by the Defendant No,2 in the instant case. Simply for the reasons that, such condition could be attracted where the tickets had been issued much earlier than 72 hours. In the instant case, admittedly tickets were booked and issued on 13-4-1999 for the journey scheduled for 14-4-1999 that is within next 24 hours. Under given circumstances, insistence of reconfirmation 72 hours prior to journey on the face of it is anomalous. Even otherwise, Computer printout produced in evidence shows that, seats were reconfirmed before undertaking the journey by the Plaintiff and his son, even the Defendant No,4 the Travel Agent, also confirmed such position. All the more, the witness of the Defendant No,2 admitted that the seats were confirmed. In the instant case, reservation for Flight No,603 Karachi-Dubai under the circumstances did not require 72 hours prior reconfirmation. If that had been the case the Defendants would not have issued the tickets for a flight that was scheduled to take off within next 24 hours. Defendant No,1 produced relevant PNRs of the Plaintiff and his son (Ex, D-1/2 to D-1/5) evidencing that, they had confirmed reservation for onward journey from Dubai to London etc. But, they failed to turn up for the reason that, Emirates did not carried them from Karachi to Dubai. Such evidence was neither disputed nor challenged by the Emirates on the contrary it negates the stance adopted by the Emirates that the Plaintiff had no onwards booking. 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 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
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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. 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. 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 Exh.P/17. In support…
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