P L D 1960 (W (PLP)

The next question for determination is whether the deceased died on account of the negligence of defendant No. I company. The plaintiffs' case is that the death of the deceased was caused by the negligence of the piloting crew of defendant No. 1 company. The defendants admitted in para. 10 of their written statement the allegation made in para. 10 of the plaint but added that when the plane left Palam Airport for Dacca it was mechanically perfect and fully airworthy ; the crash was caused by negligence in piloting by the navigation and piloting crew of the aircraft. They have, how ever, resisted this suit on the ground that the deceased was in common employment with Capt. Green, the pilot whose negligence in piloting brought about the disaster. The evidence produced by the defendants shows that the aircraft in question landed at Delhi on schedule flight at 4 a.m, the pilot reported to D. W. 3, Mr. Karar Hussain that the hydraulic system of the plane was defective. The witness stated that this defect was rectified and he issued a certificate of safety for flight as from the technical point the plane was safe in every respect. He also admitted that he met Capt. Green, its pilot and found him fit. In cross‑examination he admitted that the plane, after taking off at 6 a.m., again landed back with the defect in the hydraulic system. The plane again took off at 10 p.m. To a Court question the witness stated that the record of the details of the rectification was maintained at Delhi and later on forwarded to Karachi. D. W. 2 Ejaz Ali (Ex. 12) Chief Inspector of defendant No. I company at the material time, admitted that he was associated with the Enquiry Commission. In his opinion the accident took place due to navi gational error, but neither he produced his inspection notes nor Enquiry Commission report about the cause of the crash. This witness also admitted that the aircraft due to the defect in the hydraulic system was detained in Delhi and proceeded on further flight after it was certified to be in proper condition. This is all the evidence on this question. Thus it is obvious that there is no direct evidence about the cause of the crash. In fact there could be none as none of the persons travelling in the aircraft survived. The best evidence which could throw light on this point was the report of the Official Enquiry held to find out the cause of the accident. It is true that the general rule is that it is for the plaintiff to prove negligence and not for the defendant to disprove it, but in those cases where the true cause of the accident lies solely within the knowledge of the defendants this hardship is avoided by invoking the rule of res ipsa loquitur. Under it in those cases where the accident speaks for itself it is sufficient for the plaintiffs to prove the accident and nothing more. It is then for the defendants to persuade the Curt that the accident arose not through their negligence. This principle was recognised by their Lordships of the Privy Council in Aspro Limited v. Commissioner of Taxes (1932 A C 683, 689) and in Grant v. Australian Knitting Mills Limited and others (1936 A C 85, 101). This maxim was also applied by Goddard, J. in Fosbroke Hobbes v. Airwork Ltd. and British American Air Services Ltd. ((1937) 1 A E L R 108, 109) in a case of aircraft crash. On the evidence of D. W. 3 Karar Hussain (Ex. 13) there is no doubt that the machinery of the aircraft was not in proper condition, that it had a defect in its hydraulic system which was rectified but the plane had to return again to Delhi and reported the same defect. In my opinion it cannot be ruled out that the plane met with the disaster for this very defect, and the defendants should have disproved (sic) that there was no inherent defect in the machinery of the aircraft. In my opinion the defendants failed to discharge this burden and subject to the law on the point are liable to account for this negligence. As already observed, the defendants admitted the allegation of the plaintiffs in para. 10 of the plaint which reads as under In particular the negligence was such that on the flight in question, the Aircraft had to be repaired twice at Delhi, the navigation and piloting crew took off from Delhi without proper or valid route forecast, the navigating or piloting crew were tired and strained, did not follow the correct route, did not utilise ground aids to assist in navigation flew at altitudes insufficient to clear the terrain, the pilot of the Aircraft Captain Green on official enquiry being found to have flown at incorrect altitudes even previously." The defendant's admission that "the pilot of the Aircraft Captain Green on official enquiry being found to have flown at incorrect altitudes even previously" fixes the responsibility of the negligence, directly on them. It appears to me that it is the duty of they master to use reasonable care and skill in choosing competent and careful servants and in dismissing those who prove themselves incompetent and careless and any omission in this respect is the personal negligence of the master. There is nothing on the record to show what steps defendant No. 1 took to control Captain Green from flying at incorrect altitude or why did not they dismiss him. In the absence of any such evidence I am constrained to hold that defendant No. 1 company was negligent in employing Captain Green for piloting this aircraft. In any case even if it is assumed for the sake of argument that the accident did not take place on account of defendant No. 1's actual negligence, there can be no doubt that the accident took place due to the negligence of their chief pilot. The question therefore arises whether the defendant company is liable for the negligence of their employees. Mr. Rahirtoola, the learned counsel for the plaintiffs, contended that the rule of common employment recognised under the English common law does not apply to Pakistan. The learned counsel invited my attention to a decision of the Nagpur High Court reported in Secretary of State v. Rukhminibai (A I R 1937 Nag. 354). In that case there was difference of opinion between Niyogi and Staples, A. J. Cs., on the question whether the railway company was liable for the negligence of their employees. Staples, A. J. C. was of the opinion that the doctrine of common employment affords a good defence to the Railway Company, whereas Niyogi, A. J. C. took the view that the doctrine in so far as it has been abrogated in England by the Employers' Liability Act, 1880, cannot be imported into India The matter was referred to Stone, C. J. and Pollock, J., who gave the opinion That the doctrine of common employment does not prevail in India in cases which in England would come under the Employers' Liability Act, the reason being that the doctrine under the condition prevalent in India is not in accordance with the principle of justice, equity and good conscience. This controversy is set at rest by the decision of their Lordships of the Privy Council in Governor‑General in Council v. Constance Zena Wells (A I R 1950 P C 22). Their Lordships reversed the decision reported in Mrs. C. Z. Wells v. Governor‑General in Council (A I R 1946 Lab. 50) and held that even under the Employers' Liability Act (1938), the defence of common employment in suits for damages has not been completely taken away but restricted to those cases which are covered by section 3 of the said enactment. Lord MacDermott while considering section 3 (d) of the Employers' Liability Act, 1938 observed In addition, it conforms better with the limited purpose of the Act which, as its title and the particularity of the several paragraphs of section 3 go to show, was intended not to abolish the doctrine of common employment but rather to reduce its scope. If, however, what may be called the three category construction were to prevail the result would be to reduce the doctrine almost, if not altogether, to the point of extinction and to render otiose much in section 3 which is designedly detailed and specific. His Lordship further observed "Their Lordships are therefore of opinion that the defence of common employment was open to the appellant and that the second question should be answered in the negative." 1n view of this decision of their Lordships of the Privy Council, it is obvious that the doctrine of common employment has not been reduced totally but only to such extent as is laid E down in section 3 of the Employers' Liability Act, 1938. Unde section 3 of the Employers' Liability Act, 1938 defence of common employment is barred in certain cases. 1t reads as under "Where personal injury is caused to a workman‑ (a) by reason of the omission of the employer to maintain in good and safe condition any way, works, machinery or plant connected with or used in his trade or business, or by reason of any like omission on the part of any person in the service of the employer who has been entrusted by the employer with the duty of seeing that such way; works, machinery or plant are in good and safe condition ; or (b) by reason of the negligence of any person in the service of the employer who has any superintendence entrusted to him, whilst in the exercise of such superintendence ; or (c) by reason of the negligence of any person in the service of the employer to whose orders or directions the workman at the time of the injury was bound to conform and did conform, where the injury resulted from his having so conformed ; or (d) by reason of any act or omission of any person in the service of the employer done or made in obedience to any rule or bye‑law of the employer (not being a rule or bye‑law which is required by or under any law for the time being in force to be approved by any authority and which has been so approved) or in obedience to particular instructions given by any person to whom the employer has delegated authority in that behalf or in the normal performance of his duties ; a suit for damages in respect of the injury instituted by the workman or by any person entitled in case of his death shall not fail by reason only of the fact that the workman was at the time of the injury a workman of, or in the service of, or engaged in the work of, the employer." The question is whether the case of the deceased is covered by any of the subsections mentioned in this provision of law. As far as clause (d) is concerned, after the decision of their Lordships of the Privy Council in A I R 1950 P C 22 over‑ruling the decision of the Lahore High Court in A I R 194:5 Lah. 50, the position is that where a personal injury is caused to a workman in the normal performance of his duties, it does not apply and does not operate to take away the common employment defence open to the employer. I shall therefore have to consider whether the present case is covered by clauses (a), (6) and (c) of section 3 of the said enactment. In my opinion both subsections (a) and (b) are applicable to the facts of this case. It has been proved on the evidence produced in this case that the machinery of the aircraft in question was not maintained in good and safe condition. The fact that a defect was found in the hydraulic system of the aircraft at Delhi, which again occurred clearly shows that the machine in question was not maintained in good and safe condition by the employer and it cannot be ruled out that it might have been the cause of disaster at Tripura. It was the duty of the defendant No. 1 in such circumstances not to allow the aircraft in question at 10 p.m. to proceed to Dacca and they should have detained it and allowed it to proceed during the day time for the safety of the passengers and personal of the aircraft. The defendant company had entrusted the duty of seeing that the machinery of their aircrafts is in good condition to Mr. Karar Hussain, and on the admission of the defendants in the written statement, he failed to discharge his duty properly. In any case the case clearly falls within the four corners of clause (b) of this section. Even if the case of the defendants is accepted that the negligence was of the pilot, it is obvious that Capt. Green, the pilot in chief, was responsible for the safe conduct of the aircraft and was entrusted with its superintendence, namely, its manage ment and control. Having regard to the fact that he committed; negligence in the discharge of his duty as Superintendent, the defendant No. 1 is liable to the co‑employees for the negligence of their other employees. Mr. Fazlur Rehman, the learned counsel for the defendants, very frankly admitted the defendants' liability to compensate the plaintiffs. Accordingly I will hold that the defence of common employment is not open in this case to the defendants and the case shall have to be decided on the general provisions applicable to such cases. The result of the above mentioned finding is that the defendants' liability to its employees in respect of the negligence of another employee is the same as their liability to third parties. Defendant No. 1 company's case l that the deceased was guilty of contributory negligence has no foundation. The deceased did not fly with the knowledge that the aeroplane was in a defective condition or was likely to meet with an accident. How could the deceased be expected to refuse to fly when the defendant No. 1's agent and the appropriate Government certified that the aeroplane could undertake the flight. This plea therefore fails. It was, however, urged by Mr. Fazlur Rehman, the learned counsel for the defendants that the conditions and terms on which the deceased was employed are governed by Ex. 9/35, copy of rules, produced by them. He referred me to rule 19 which reads, as under "Employee will be insured against accident while flying on the Company's business on the following scales :‑ This scale does not apply to staff who are covered by special insurance policies in accordance with the terms of their emyloy 3nent. Such insurance shall be taken in full satisfactions of all claims (if any) against the Company whether at the instance L)f the employee, his legal representatives or dependents for accidents or otherwise and the employee shall hold the Company indemnified accordingly." The learned counsel argued that the deceased had contracted to accept the amount in which he was insured under this rule in full satisfaction of his claim and therefore his dependents under section I of the Fatal Accidents Act, 1855 are not entitled to file a suit against the defendant company. The learned counsel con tended that the personal representatives of the deceased cannot maintain an action under this Act where the deceased, if .he had survived, would not have been entitled to recover. This argument does not deserve serious consideration. The phraseology of section I of the Pakistan Act is the same as Lord Campbell's English Fatal Accidents Act, 1846. This enactment has been the subject‑matter of a large number of decisions in the United Kingdom. Their Lordships of the Privy Council in British Electric Railway Co., Ltd. v. Violet Gentile (1914 A C 1034), a case from Canada observed Their Lordships are of opinion that the punctum temporis at which the test is to be taken is at the moment of death, with the idea fictionally that death has not taken place. It appears to me that the beneficiaries under the Fatal Accidents Act must prove‑ (1) that the deceased person was injured by the wrongful act, neglect or default of the defendant ; (2) that he died in consequence of such neglect ; (3) that at the time of his death he had a right to recover damages ; and (4) that they have suffered pecuniary loss from his death. On proof of these facts they have a cause of action, otherwise their suit must fail. Mr. Fazlur Rehman referred to the following observations of their Lordships of the Privy Council in 1914 A C 1034 If, therefore, the deceased could not, had he survived at that moment, maintained, i.e. successfully maintained, his action, then the action under the Act does not arise. Therefore when the deceased had already been compensated and discharged all claims (L R 3 Q B 555), or had covenanted away his rights (9 Q B D 357), he was not in a position to `maintain an action.' This is the ground on which Blackburn, J. (as he then was) in the former case expressly puts his judgment. Their Lordships feel bound to add that, in their opinion, the remark which follows has been misunderstood. Blackburn, J., after commenting on section 1, goes on to say that section 2 does not give a `new right of action. That means in law beyond what is given by section

1. But it has been interpreted in a wider sense by Field and Cave, JJ. in Griffiths' case 9 Q B D

537. That this is erroneous is best appreciated by remembering that Lord Blackburn himself used the emphatic words quoted above in the Vara Cruz case (10 App. Case 59) a few years after he pro nounced the judgment in Read v. Eastern Ry. Co. (L R 3 Q B 555) and that when the erroneous view of the latter case was urged in argument he quoted the words above cited from the older case of Pym v. Great Northern Ry. Co. 4 B & S 396. to show that the deceased under the terms of the agreement could only look to the insurance effected for him and could not claim any damages from defendant of company. I quite agree that there are weighty decisions in which it is held that an employee is not entitled to maintain an action against the employer ii' lie had by his own negligence contributed in the injury or before the act or neglect which caused the injury has been clone or committed, he had contracted with the defendants that he would under no circumstances claim any damages for such an act or neglect, or where he has compromised a claim in respect of it, or has allowed the time to go by within which under some Act, the action ought to have been commenced. But in this case none of these disabling causes exit. It is not a case in which the deceased had absolved defendant No. I company from all the liabilities arising out of the accident due to their negligence. The interpretation of defendant No. I of rule 19 is that under it the deceased agreed that in case of personal injury or death arising out of any accident during the course of his employment, he or his heirs would not claim more than Rs. 4,000 as damages. This is very clear from their interpretation of this rule as given in paragraph 19 of the written statement. It runs as under "That the Orient Airways Limited in pursuance of their Rules had taken out an insurance policy for Rs. 4,000 for the benefit of Peter D'Lima, the latter I:aving agreed that in case of personal injury or death by an accident fir arsing out of and in the course of his employment !he said Peter D'Lima or his heirs would not claim more than Rs. 4,000 as compensation or damages." In my opinion this is the only possible and reasonable interpreta tion of rule

19. Thus this is a case in which the deceased had limited the liability of the defendants to the extent of Rs. 4,000 covered by the insurance policy. Now the question is whether the deceased could curtail the beneficiary rights for damages under the Fatal Accidents Act. It seems that the right of action given under it to the beneficiaries is entirely different from that which the deceased would have bad if he had survived. This view is supported by a decision of the House of Lords in the Vera Cruz case reported in (1) Lord Blackburn in that case observed at page 70 "I think that when that Act (Lord Campbell's Act) is looked at it is plain enough that if a person dies under the circum stances mentioned, when he might have maintained an action if it had been for an injury to himself which he had survived, a totally new action is given against the person who would have been responsible to the deceased if the deceased had lived ; and action which, as is pointed out in Pym v. Great Northern Railway Company 2 B & S 759, 4 B & S 396, is new in its species, new in the quality, new in its principle, in every way new, and which can only be brought if there is any person answering the descrip tion of the widow, parent, or child, who under such circum stances suffers pecuniary loss by the death." Thus in spite of some common factors to both rights of action the beneficiary can only succeed on proof of pecuniary loss to them and this loss is to be assessed entirely on a different footing than (1) (1884) 10 App. Cas. 59 the deceased's right of action. In my opinion, Mr. Rahimtoola is perfectly right in his contention that the deceased on the language of section 1 of the Fatal Accidents Act had no power to limit the right of the beneficiaries to claim damages in certain amount. The learned counsel invited my attention to a decision of the Court of Appeal in Nunan v. Southern Railway Company ((1924) 1 K B D 223). In that case a passenger by railway agreed with the railway company that their liability for personal injury shall not exceed a certain sum. He was killed by the negligence of the company's servants and his dependents filed an action under the Fatal Accidents Act, 1846 for damages. It was contended on behalf of the railway company that the action was not maintainable as their liability had been limited by the deceased. The question in that case was whether a stipulation limiting the amount of the defen dants' liability is binding on the injured person's representative when suing under the Fatal Accidents Act. This contention was not accepted and it was held that the dependents of the deceased are not bound by any contract limiting the liability of the company as the question to what damages the dependents are entitled to is entirely a different question and is to be determined on the facts of each case. Scrutton L. J. in this connection observed at page 228 Then it is argued that if that is so his dependents must equally be bound if he has made an agreement which, while leaving him a cause of action, limits the amount which he can recover. I agree that it looks odd that he should be able to bar his dependents entirely, and yet should not be able to bar them in part, but one must be guided by the words of the statute. The moment one attempts to transfer the provisions as to the amount of the liability (as distinguished from the liability itself) from the contract of the deceased to the rights of his dependents one gets into a difficulty. For their damages are not the same as the damages of the deceased ; they are calculated on quite a different principle ; they include some matters for which he could not claim, and exclude others for which he could. The only way that has occurred to me by which the difficulty could be got over is to treat the damages over 1001 as being a separate cause of action, and to say that as he could not bring an action for sums over 1001, his dependents could not bring an action for sums over 1001 either. But the objection to that is that it involves the splitting up of a cause of action, a process which is not permitted by English law. Under these circumstances we must follow the language of the statute, and that language compels us to say that as the dead man could at the time of his death have brought an action for some damages his dependents can bring an action for their own and quite different damages. Atkin L. J. also expressed the same view. It also appears to me that under the Fatal Accidents Act once it is established that the deceased at the time of his death had a right to maintain his action and to recover damages, the beneficiaries have fulfilled the condition laid down in the Fatal Accidents Act to bring their claim and any agreement between the deceased and the employer limiting the liability of the employer in cases arising out of the accident will not be binding on them because in the words of Lord Blackburn in the Vera Cruz case their cause of action is "new in its species, new in its quality, new in its principle, in every way new." Therefore any limit put to the amount of damages by the deceased have no bearing on the claim of the dependents on a different cause of action [see also Grain v. Imperial Surveys Ltd. ((1936) 2 All. E R 1258)] I therefore hold that Rule 19 does not bind the plaintiffs and the question shall have to be decided independently of any limit fixed or accepted by the deceased in lieu of any claim which might have arisen on account of personal injury caused to him by the defendant company. This brings me to the next question namely what damages should be awarded to the plaintiffs. It was urged by Mr. Fazlur Rehman that the case of the deceased should be determined on the same basis as the case of a workman under the Workmen's Compensation Act. He argued that the same amount of damages should be awarded to the dependents of the deceased as they would be entitled under the Workmen's Compensation Act. This contention also is without substance. There are two alternative remedies open to the dependents of the deceased person. They can either invoke the provisions of the Workmen's Compensation Act or file a suit under the provisions of the Fatal Accidents Act. The principle on which damages are awarded under the Workmen's 1 Compensation Act have nothing to do with the claim made under the Fatal Accidents Act. Accordingly I am not bound to assess the damages of the plaintiffs in the light of the scale prescribed in the Workmen's Compensation Act. Admittedly the deceased at the time of his death was about 38 years of age. It is admitted by the defendant company that there was no age of retirement fixed for the post held by the deceased in the defendant company. It is also admitted that the deceased's salary at the time of the accident was about Rs. 245 per month. Mr. Rahimtoola contended that the deceased was expected to live for at least another 20 years and his annual income should be multiplied by 20 and that should be the basis of the compensation to be awarded. Mr. Rahimtoola also argued that the deceased had good prospects in the defendant company and that his income from gifts and tips should also be included in calculating damages. I have already observed that the evidence on this point is not satisfactory and as such income is prohibited under the rules of the company, I do not consider it will be fair to include the alleged income or to take into consideration the rise of the scale of pay of his post on the taking over of defendant No. 1 company after his death by defendant No. 2 company for assessing the damages caused to the plaintiffs. It is well recognised rule that only such damages can be awarded to the dependents of the deceased which directly resulted to them from his death. They cannot claim any solatium for the grief caused by his death or for the loss of his society. Accordingly I will only fix the damages on the admitted income of the deceased viz : Rs. 245 per month. Now the next question is whether the whole of this amount should be the basis of awarding damages. I am not inclined to do so because the deceased would not have spent the whole of his income on his dependents. Undoubtedly out of his income the deceased, if he had survived, would have at least spent about J of it on himself. In my opinion his personal expenses must be deducted from his income. Deducting the amount of Rs. 81 per month from the income of the deceased, only a balance of Rs. 164 is left. Thus his net annual income for calculating the damages is only Rs. 1,968 per annum. In A I R 1946 Lab. 50 the normal expectation of the life of a person aged 26 years was considered as 20 years. In my opinion the normal expectation of life of the deceased in this case could not be more than 15 years. The deceased was employed with an air company and the risk involved in such service cannot be ruled out of consideration. Multiplying L the deceased's annual net income by 15, the plaintiffs are entitled to damages in the sum of Rs. 29,520 (Rupees twenty‑nine thousand five hundred and twenty) against the defendants. In view of the above findings my answers to the issues framed in the suit are as under Issue No. 1.‑They are the dependents of the deceased. Issue No. 2.‑Not proved. Issue No. 3.‑Not relevant. Issue No. 4.‑38 years, perfect sound health. Better prospects not proved. Issues No. 5, 6 & 7.‑Against the defendants. Issue No 8.‑Affirmative. Issue No. 9.‑Affirmative. Issue No. 10‑Negative. Issue No. H.‑Yes, but of no effect. Issue No. 12.‑‑Yes as per rule 19 but it is not binding on plaintiffs. Issue No. 13.‑Damages awarded as above. The next question is in what proportion the said amount should be distributed between the plaintiffs, out of his amount Rs. 5,000 (Rupees five thousand) is awarded to plaintiff No. 1 ; Rs. 2,0(0 (Rupees two thousand) to plaintiff No. 2 ; Rs. 3,000 (Rupees three thousand) to plaintiff No. Rs. 5,000 (Rupees five thousand) to plaintiff No. 3 and the balance of Rs. 14,520 (Rupees fourteen thousand five hundred and twenty) is awarded to plaintiffs 4 and 5 in equal shares. For the reasons given above, the plaintiffs are granted a decree for Rs. 29,520 (Rupees twenty‑nine thousand five hundred and twenty) subject to the above‑mentioned directions with pro portionate costs. Defendants, however, will bear the full costs of the Court fee payable under law to Government by the plaintiff. A. H. Order accordingly