P L D 2003 Lahore 358 (PLP)

2. The learned counsel for the appellants contended that there was no contract between the appellant and plaintiff/respondent No. 1 nor the alleged damages were tabulated under the particular heads given in the plaint. There was no evidence to prove the loss suffered by the plaintiff. If there was any it was too remote. Conversely the learned counsel for the respondent No. 1 submitted that the appeal has not been filed competently. No resolution passed by the company authorizing the General Manager, Pakistan to tile the appeal has been placed on the record. Learned counsel argued that the Graduation on Ceremony was a memorable occasion in the life of the young plaintiff where the management officials of the hotels from all over world come to select the Graduates for employment in their hotel but the plaintiff was deprived of the same. The plaintiff suffered mental torture. The loss could not be estimated in exact terms of money. The "res ipsa luquitor" was also pressed into service by the learned counsel. He argued that loss could not be estimated under a particular head as such "the rule of thumb" would apply. Learned counsel urged that the statement of the attorney of the plaintiff goes un- rebutted and in fact the claim stands admitted. For the above submissions reliance was placed on Government of Pakistan v. Premier Sugar Mills and others (PLD 1991 Lahore 381), National Bank of Pakistan and others v. Karachi Development Authority and others (PLD 1999 Karachi 260), Qazi Dost Muhammad v. Malik Dost Muhammad and 4 others (1997 CLC 546), Muhammad Sharif v. Nawab Din and another (PLD 1957 Lahore 283), Sakhi Muhammad v. Muhammad Nasir Bashir (1999 CLC 454), Ismail v. Abdullah and another (PLD 1963 Karachi 161). Khanzada Inamullah Khan v. Mst. Zakia Qutab and 3 others (PLD 1998 Peshawar 52), Water and Power Development Authority and others v. Mian Ghulam Bari (1995 MLD 480) and Water and Power Development Authority v. Mian Ghulam Bari (1989 CLC 1605).

3. We have gone through the Judgment of the Court below and perused the record. We propose to first dispose of the preliminary objection raised by the learned counsel for the respondent that the appeal has not been competently filed. The written statement was filed on behalf of the defendant/appellant by General Manager Pakistan Emirates. No objection was raised by the plaintiff/respondent. The present appeal has also been filed by Abdullah Naser Abdullah the General Manager. Pakistan Emirates. It is thus clear that the General Manager of the Corporation in Pakistan defended the suit and has filed the appeal. The power of attorney in favour of Mr. Abdullah Naser Abdullah by the Corporation in English and Arabic is present on the record, in these circumstances the authorities Government of Pakistan v. Premier Sugar Mills and others (supra) and National Bank of Pakistan and others v. Karachi Development Authority and others (supra), would not be applicable to the facts of the instant case. 4. "Mark-C" air ticket shows that it was issued by Continental Airlines who have not been impleaded as defendant. Ex facie there is no contract between the plaintiff and the defendant/appellant Cause of action if any, arose against the contracting party and plaintiff/respondent/passenger should have sued the contracting carrier. The carriage of passenger from Lahore to Dubai by appellant is a sub-contract/understanding between the two Airlines. The learned trial Court completely misdirected himself to the law that the suit can be decided in the absence of the Continental Airline i.e. principal contracting party. This suit is liable to be dismissed on this score alone.

5. International carriage by air is governed by Warsaw Convention of 1929 which was given statutory force by the Carriage by Air Act, 1934. The Convention of 1929 was amended by the Hague Protocol of 1951 and the amended Convention was given legal effect in Pakistan by Carriage by Air (International Convention) Act, 1966 repealing the Carriage by Air Act, 1934 as under:-- "

5. Repeal, etc.,--The Carriage by Air Act, 1934 (XX of 1934), shall,-- (a) in so far as it relates to carriage by air to which the rules-contained in the First Schedule to this Act may, for the time being, apply, stand repealed; and (b) to the extent it has not been so repealed, have effect subject to the modification that for the provisions of the Second Schedule to that Act the provisions of the Second Schedule to this Act shall be substituted.'" The convention rules find mention in First Schedule and Second Schedule to the Act, IX of 1966. Rule 3 of Chapter II of the First Schedule reads as under:-- 3.--(1) In respect of the carriage of passengers a ticket ' shall be delivered containing:-- (a) any indication of the places of departure and destination; (b) if the places of departure and destination are within the territory of a single High Contracting Party, one or more agreed stopping places being within the territory of another State an indication of at least one such stopping place; (c) a notice to the effect that, if the passenger's journey involves an ultimate destination or stop in a country other than the country of departure; the Warsaw Convention may be applicable and that the Convention governs and in most cases limits the liability of carriers for, death or personal injury and in respect of loss of or damage to baggage. (2) The passenger ticket shall constitute prima facie evidence of the conclusion and conditions of the contract of carriage. The absence, irregularity or loss of the passenger ticket does not affect the existence or the validity of the contract of carriage which shall, nonetheless, be subject to these rules. Nevertheless, if with the consent of the carriage, the passenger embarks without a passenger ticket having been delivered or if the ticket does not include the notice required by sub-rule (1)(c) of this rule the carrier shall not be entitled to avail himself of the provisions of rule

22. It is clear from the above rule 3(2) that passenger ticket shall constitute prima facie evidence of the conclusion and conditions of the contract of carriage. In the instant case "Mark-C" (photo copy of a leaf of the air ticket) shows that the conditions of the travel given on the ticket have not been produced in evidence nor placed on record by the plaintiff. It seems to have been deliberately withheld. It is well-settled by now that a passenger travels by an aeroplane as per terms and conditions appended with the ticket. The defendants have also not relied upon them nor adduced in evidence According to rule 3(2) of Chapter II of the First Schedule, the carriage is governed by the conditions of the contract of carriage i.e. passenger ticket. In the absence of the same the suit is also liable to be dismissed.

6. In the case of Nader v. Allegheny Airlines Inc. 426 US 290 (1976) and British Airways Board v. Taylor (1976) 1 All ER 65, the question was whether the Airlines could be prosecuted for making the secretive/deceptive statements/misrepresentations about the confirmation of the seat though the flights had been over booked. It was observed that the bumped passenger will have a choice between accepting denied boarding compensation as liquidated damages for all damages incurred as a result of carrier's failure to provide the passenger with confirmed reserved seat or pursuing; his common-law remedies. Now falling back upon the general principles of Law of Contract contained in the Contract Act, 1872, assuming there is a contract between the parties the lose claimed by the plaintiff is too remote. Section 73 of the Contract Act reads as under:--

73. When a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it. Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach. When an obligation resembling those created by contract has been incurred and has not been discharged, any person injured by the failure to discharge it is entitled to receive the same compensation from the party in default, as if such person had contracted to discharge it and had broken his contract. Explanation.--In estimating the loss or damage arising from a breach contract, the means which existed of remedying the inconvenience caused by the non-performance of the contract must be taken into account. Loss includes any harm to .the person or property of the claimant, and any ther injury to his economic position. The main consideration in assessing damages, is whether the damages naturally arose in the usual course of things. A defendant is not normally liable for a loss which is not likely to occur in the ordinary course of things or which watt not in contemplation of the parties at the time of the formation of contract. In the instant case the loss as being claimed on the basis of the special circumstances but the same were not intimated to the appellant. No special notice was given of the extraordinary nature of contract. The doctrine of special notice has been considered in many cases. In Home and another v. Midland Railway Company (1873) LR 8 CP 131, Blackburn, J. said that:-- "In order that the notice [of special circumstances] may have any effect, it must be given under such circumstances as that an actual contract arises on the part of the defendant to bear exceptional loss." In Simpson v. L&N.W. Railway Company (1876) 1 QBD 274, the samples of cattle-food were to be transmitted from Bedford to an agricultural show at Newcastle: the goods were marked (must be at Newcastle by Monday certain). The samples failed to arrive by Monday and did not reach Newcastle till after the show was over. It was held that the defendants were liable. In the case of B. C. Saw-Mill Co. Ltd. V. Nettleship, (1868) LR 3 CP 499, while deciding the similar point an example was given that a Barrister going to Calcutta when had briefs awaiting him, could not sue the carriers for getting him there late even if they know why is he going to Calcutta. In the case of Monindra Lall Sen v. Union of~ India (AIR 1960 Patna 411) an Advocate due to the defective management in the matter of reservation of seats on the part of Railway Administration, travelled by the next train and reached late and thereby missed an engagement at Calcutta and claimed Rs.100 as damages from the Railway Administration. It was observed as under:-- "There was no contract to take him to Calcutta for a particular object. It is well to remember that the punctuality of the train is not guaranteed, and assume that on the relevant date the Down Janata Express reached Calcutta very late, say, after 9-00 hours. By the lateness of the train also the plaintiff might have missed the engagement. Can it be reasonably urged that the plaintiff would be entitled to damages on account of his missing the engagement because the train reached late? The circumstance is sufficient to show in bold relief that the damage, on account of his missing his engagement cannot be said to be a natural consequence of the breach of contract by the Union of India. " The plaintiff would also be entitled to damages if the Railway Administration knew at the time of reservation of the seats that the plaintiff had an engagement in Calcutta at 9-00 hours on 29-9-1954, and that he had booked the tickets and reserved the seats in order to go there to fulfil the engagement. Unfortunately, there is no evidence on this point. There is nothing to show that the plaintiff told the Railway Authorities that he was booking the tickets and reserving the seats for an engagement in Calcutta at 9-00 hours on 29-9-1954." The difference between the above said cases seems to be that in the Simpson case the contract was in substance to carry samples to the Newcastle show not simply to Newcastle. Whereas in the latter cases the contract was to carry the Barrister/Advocate to Calcutta not to Calcutta law sitting. In the case of Kpohraror v. Woolwich Building Society (1996) 4 All ER 119, where a cheque was dishonoured special damages for trading losses sustained by the plaintiff were held to be too remote as special notice of the special circumstances was not given. In the case of "The Horn II" (1967) 3 All E R 686, it was observed that the loss did not arise in the usual course of things and as being within the contemplation of the parties. In the instant case the special circumstances pleaded by the plaintiff were wholly unknown to the petitioner. There is no evidence whatsoever to show that the special circumstances i.e. the Graduation Ceremony, its memorability and selection of the plaintiff for employment purposes was ever brought to the knowledge of defendants or special notice was given to them. In the absence of the same, borrowing the words of Blackburn, J., no "actual contract" arose on the part of the defendants. The contract was to carry the passenger from Lahore-Dubai-London-New York and not to the Graduation Ceremony/memorable day in Washington. The loss claimed by the plaintiff did not arise in the natural course of things as being within the contemplation of the parties. There is no evidence led by the plaintiff to prove that-- (i) the non-participation of the plaintiff in the Graduation Ceremony rendered his degree/diploma ineffective or valueless academically and the expenditure incurred in obtaining the diploma was a total loss; (ii) failure of the plaintiff to take part in the Graduation Ceremony has made it impossible for him to find a job or has diminished his future job perspective: (iii) the plaintiff suffered any injury to the feelings. In the absence of the same the loss claimed is too remote. The alleged loss could not be anticipated by any stretch of imagination. Non-participation of the plaintiff has not adversely affected his position. Nothing has been brought on the record to show that the plaintiff/respondent No. 1 was offered any job or that it was impossible for G him to get the job subsequently. Without the same it cannot be said that the loss arose naturally in the usual course of things from alleged breach. The damages cannot also be recovered for the anxiety, the anxiety is inevitable concomitant of expectations, the plaintiff must be deemed to have taken the risk of it. The damages for anxiety or mental stress cannot therefore be recovered for breach of contract resulting to the failure of expectations. The damages in contract for injuries to feelings, mental distress, anguish annoyance, loss of reputation or social discredit which the plaintiff may sustain and also the fact that it makes it very difficult to obtain fresh employment cannot tie recovered being too remote. See Addis v. Gramophone Company Ltd. (1909) AC 488, Foaminol Laboratories Ltd. v. British Artid Plastics Ltd. (1941) 2 All ER 393, Bailey v. Bullock and others (1950) 2 All ER 1167 and Hayes and another v. James & Charles Dodd (1990) 2 All ER

815. It has been held in these authorities that damages for anguish and vexation arising out of breach of contract were not recoverable I unless the object of the contract was to provide peace of mind or freedom from distress. Punitive or exemplary damages could not be awarded in a purely contractual action. Since the object of such an action is not to punish the defendant but to compensate the claimant. The breach of contract is a civil wrong and not a crime. The object of damages for breach of contract is to put the victim so tar as the money can do it in the same position as if the contract had been performed and not to enrich the plaintiff. This Court cannot order the defendant to pay the amount which will actually make the plaintiff's position better than the one if the contract had been performed. The learned trial Court had decreed the suit on no evidence. The judgment is perverse and is unsustainable in law. Similarly the sum of $ 1,00,000 claimed by the plaintiff cannot be awarded as-- (a) no detail of losses claimed under different heads have been given; (b) there is no evidence what amount was spent on completion of the Hospitality Management Course, though the same are not recoverable as held in the above noted para.; (c) the expenses incurred on obtaining visa for U.S.A. are not given; (d) compensation for denial of opportunity to get suitable job is not given in plaint. The same is also not recoverable as mentioned above; (e) the compensation for emotional anguish. Not recoverable. The damages have been claimed in U.S. currency. No reason has been given for claiming the same. The air ticket "Mark-C" shows that the plaintiff paid Rs.82,265 in Pak currency. No case is made out for claiming the compensation in U.S. currency. The Rule of thumb in granting the damages as alleged by the learned counsel for the respondent is not applicable to the breach of contract cases. Similarly the "res Ipsa loquitur" (the thing speaks for itself) is a rule of evidence and not a principle of law and is applicable to only actions of Tort and not claims under contract. The authorities relied upon by the learned counsel relate to actions of Tort and not for breach of contract as such are not relevant to the facts of the present case. As far as the contention of the learned counsel that the statement of the attorney of the plaintiff goes unrebutted, suffice to say that the plaintiff himself did not appear to prove the alleged injury, The mere bald statement of the attorney of the plaintiff (who also happened to be the father of the plaintiff) is not sufficient proof of the injury. He has been writing letters to the defendants on official letter pad of Pakistan National Assembly. It is pertinent to mention that at the time when the letters were written by him to the defendants, he had no power of attorney in his favour. The letters written by the attorney of the plaintiff, though addressed without authority do not strengthen the case of plaintiff. The plaintiff/respondent has not introduced sufficient evidence to sustain his action of contract. The compensatory damages awarded by the learned trial Court are unsustainable in law. The other contention of the learned counsel that the statement of the attorney of the plaintiff goes unrebutted, suffice to say that it proved nothing. Even otherwise the plaintiff must succeed on his own strength and not upon weakness of the case of the defendant. The cases relied upon by the learned counsel are not relevant to the facts of this case.

7. In view of the above discussion this appeal is allowed the judgment of the trial Court dates 28-7-2001 is set aside and the suit of the plaintiff is dismissed with no orders as to costs. M.B.A./E-32/L Appeal allowed.