P L D 1965 (W (PLP)

(2) What was the nature of the Agreement between the parties? (3) Was the loading of the engine under the exclusive supervision of the plaintiff's representative (Mr. Morgan) or was it shared by the defendant's representative (Mr. Riaz) and its effect? (4) Was the plaintiff's representative at the site when the accident occurred and its effect? (5) Whether there was privity of contract between the plaintiffs and the defendants, if not, its effect ? (6) Whether the defendants under the standard terms of contract assumed no responsibility for accidents etc., if so what is its effect? (7) Were the defendants, their servants or agents, negligent in carrying out the loading of the engine, if so, whether the defendants are not liable under the standard terms of contract? (8) Are the plaintiffs insurers necessary parties to the suit, if so, its effect? (9) To what relief, if any, are the plaintiffs entitled?" My findings and reasons are as follows:‑

Issues Nos. 1 and

9. Statement was made by Mr. Phillip plaintiff's Advocate on 4‑9‑64 that plaintiff had received full payment from the Insurance Company in respect of the damage done to the engine concerned. In view of this statement it was urged on behalf of the defendant that suit had become infructuous as the plaintiff could not claim the same amount twice from two different parties i.e. third party which is alleged to be responsible for the accident as well from the insurer. It was further argued by the defendant, that the plaintiff, in case of this accident, had its remedy and could claim the compensation or damages either from the insurer or from the third party which was responsible for this accident but not from both of them. He could join both these parties in one suit and claim one single amount i.e. amount spent by it on the repairs. On the other hand, it was argued by the plaintiff, that this suit was being continued for the benefit of the insurance Co, and he would recover and keep this amount in trust for the Insurance Company. It is not his case either in the plaint or in the evidence. No document has been produced by the plaintiff, to prove that he continued this suit after the payment was made to it, as a trustee of the insurance company or for the benefit of the insurer. No document to this effect has been produced by the plaintiff. At one stage, he had filed an application under Order VI rule, 17, C. P. C. to amend his plaint. But at a later stage it was dropped by him. The proposed amendment was that the words "on behalf of the Insurance Lloyds Underwriters, London" be added in the title of the plaint. It would mean when he dropped this application that plaintiff's suit is not on behalf of the insurer or for its benefit. In support of his argument that the plaintiff was debarred from raising a new plea i. e. he continued the suit as a trustee or for the benefit of the insurer, defendant had relied upon the decision reported in 34 I C 869 which lays down that when a question of law is raised for the first time in a Court of last resort upon the construction of a document or upon facts either admitted or proved beyond controversy, it is not only competent but expedient, in the interest of justice, to entertain the plea. On the other hand the plaintiff had argued that he was not debarred from suing the defendant even though it had been compensated by the insurer. He is not obliged to refrain from suing a third party for damage caused by the third party's negligence merely because he had been paid in full by his own insurers pursuant to an agreement between them and the insurers of the third party by which each insurance company pays for damage to its own assured. He must, however, if he sues and is successful account to his insurers for any sum recovered in respect of a matter for which they have paid him. This is based on the principle that the plaintiff cannot be indemnified twice over (Halsbury's Laws of England, 3rd Edn., Vol. 22 at page 264‑265). Different position i.e. an agent or trustee or insurer who is under no legal disability has been claimed by the plaintiff. I, therefore agree with the defendant and hold that the suit has become infructuous and is not maintainable and as such the plaintiff is not entitled to any relief. Issues Nos. 2 to 8.‑Even on facts, I find that the plaintiff has failed to prove the alleged wilful misconduct on the part of the defendant. In this connection, statement made by Mr. Phillip Advocate for the plaintiff dated 4‑9‑64 is relevant and it is reproduced below:‑ " If it is established that there came into existence an agree ment between the parties with regard to the handling of engines, then all the terms of ground service handling agreement will apply." These are contained in Exh. 7/2. The terms are standard terms and apply world over in connection with such ground service. Mr. Raza Hussain, Advocate for the defendant, had made a statement that this was the correct position. Thus the material and important question is whether any agreement was entered into between the parties on 25‑8‑59 regarding loading and unloading of engines in the aircraft belonging to the plaintiff. Reference has already been made to Exh. 7/2. It is a blank form of agreement which parties enter into for handling of an aircraft. It is not signed by the parties. No evidence has been adduced by the plaintiff that such an agreement was entered into with the defendant on 25‑8‑59 for handling of its aircraft. I, therefore, hold that no such agreement was entered into between the parties on 25‑8‑

59. It was argued that terms of Exh. 7/2 applied whenever an aircraft was handled by the defendant: Even in this respect I find that the defendant is absolved of its liability. Article 7 deals with liability and it is reproduced below: "The Agent, his employees, agents and sub‑contractors, either as a corporation or single person, are released from all liability for damages which the Operator or other third parties may suffer in connection with agreed services under all or any parts of this agreement, unless wilful misconduct be proved to the management of the Agent." Its perusal shows that defendant is released from all liability for damages unless wilful misconduct of the defendant is proved by the plaintiff. In this connection I would refer to Exh. 5/5 which is an aircraft handling form. It is signed by aircraft Commander on behalf of the plaintiff and shift incharge on behalf of the defendant. On the back of it, there are instructions and this clearly lays down that defendant undertook no liability for the safety or security of the aircraft and/or its contents. It would mean that parties in the present case had entered into an agreement which is Exh. 5/2 and it makes the defendant not responsible for any mishap during the handling of the aircraft belonging to the plaintiff. Wilful misconduct has been defined in a decision reported in (1952) 2 All E L R 1016. It reads: "It means misconduct to which the will is a party, and it arises when the person concerned appreciates that he is acting wrongfully, or is wrongfully omitting to act, and yet persists in so acting or omitting to act regardless of the consequences, B or acts or omits to act with reckless indifference to what the results may be. The same act may constitute negligence in the absence of any intention to do something wrong, but wilful misconduct if that intention is present." The evidence on record shows that Mr. Morgan alone was present on behalf of the plaintiff. His evidence is to the effect that proper equipment was not made available by the defendant and the loaders were not competent in doing this kind of job. When he found this position, he approached Mr. Scott, an employee of B. O. A. C., for advice and assistance and when both were returning back to the site, they saw from a distance of about 50 yards, the engine slipping and falling to the ground. On the other hand, the defendant has adduced evidence to the effect that the engine in question was bigger in size than the dimensions of the door with the result that it had to be pushed inside under the guidance, supervision and instructions of Mr. Morgan but ultimately it slipped and fell down. No evidence has been adduced to prove the intention on the part of the defendant. It Mere negligence will not amount to wilful misconduct. Thus even on the question of fact, I hold that the plaintiff has failed to prove wilful misconduct on the part of the defendant. There has been no agreement between the parties. Exh. 7/2 is merely a blank form of such agreements for the parties to enter into. Finding accordingly. In view of my findings on both questions of fact and law the suit is dismissed but I make no order as to costs. K.B.A. Suit dismissed.