P L D 1962 (W (PLP)

WAHIDUDDIN AHMED, J.‑This first appeal arises out of Suit No. 19 of 1956 filed by respondent Salahuddin Ahmed for the recovery of damages in the sum of Rs. 15,000, estimated as the lass of his baggage etc. delivered to the appellants during his air travel from Dacca to Karachi on the 27th of May 1956 on the plane of the appellants' company, Syed Iftikhar Hussain, 1st Additional District Judge, Karachi, by judgment dated the 31st of October 1957, has tae granted respondent a decree in tile sum of Rs. 2,768‑13‑3 with costs and interest. The appellant, have challenged this decree in this appeal. The facts material to the decision of this appeal are as follows: The respondent travelled from Dacca to Karachi via Lahore en the 27th of May 1956 by a Pakistan International Airline; Flight under air ticket bearing No. 2141 No. 045084 (sic). At the time of boarding the plane he entrusted to the appellant company at the Dacca Airport two of his baggages namely (al a looked zip bag (large size) and (b) a basket of fruit, and in token of acceptance the appellants' employees at Dacca issued two baggage tags bearing Nos. 20580 and 20561. The respondent reached the Karachi Airport in the early hours of the morning of the 28th of May 1956 at about 2‑15 a.m., but on the pro duction of his baggage claim tags referred to above, the appellant company failed to deliver them to him on the plea that they had been lost on the way. The respondent alleged that on account of the non‑delivery of his baggage, be had to stay in Karachi and wait for the delivery of his baggage, but in spite of the great inconvenience caused to him it did not bear any fruit. On the failure of the appellants to return the baggage in question, the respondent claimed damages in the sum of Rs. 15,000, which also included cash currency notes of Rs. 4,600. caused to him on account of the negligence of the appellants. The appellants resisted the suit on the ground that they were protected under a special contract between them and the respondent and they were not liable to pay any damages even If it is established that they have been guilty of negligence or committed any default. The case of the appellants before the learned Additional District Judge, Karachi, was that under a special contract, namely, clause (4) printed on the passage ticket, they are protected from all claims and liabilities In respect of baggage lost by them. On the other hand, the respondent contended that the appellants were bound to compensate him as bailees of the goods under sections 151 and 152 of the Contract Act. The learned Subordinate Court, after hearing the evidence of the parties, held that the condition relied upon by the appellants was in restraint of freedom of contract and opposed to justice as it encouraged wrong doing. He further held that since the defendant relied upon a special contract, they should have taken steps to make known its terms to the intending passengers. He found that the appellants had failed to give reasonable notice inasmuch as the condition was not printed in bold letters and as such they have not contracted themselves out of all liability for the loss of baggage. On these findings the learned Subordinate Court found that the respondent was entitled to the expenses incurred during his forced stay at Karachi from the 28th of May 1956 to the 22nd of June 1956 amounting to Rs.

710. He allowed the respondent Rs. 2,000 as approximate damages for loss of business. He further awarded a decree for the value of 47 Ibs. baggage calculated at the rate of 250 franc per kilogram equivalent to a rupee. The appellants have challenged in this appeal not only their liability but also the amount of damages awarded to the respondent by the learned Subordinate Court. The first question, therefore, which falls for determination in this appeal is whether the appellant Airways are entitled to claim exemption from liability under the terms incorporated in the ticket on which the respondent travelled on their aircraft. , Mr. Irshadali, the learned counsel for the appellants, contends that tic appellant company being a common carrier was entitled under the English common law to enter into a special contract with the passengers and could claim exemption from liability under the terms of the special contract. The respondent's stand is that the liability of the carrier is governed by the pro visions of sections 151 and 152 of the Contract Act, 1872, and they are liable to compensate the respondent in case they are found to be guilty of negligence. Before discussing the question on merits, it may be pointed out that the case is not covered by the provisions of the Indian Carriage by Air Act, 1924. Mr. Khan, the learned counsel for the respondent, contended that the provisions of this Act by implication was applied to the national flights, but after going through the provisions of the relevant Act, it is quite clear to us that it was brought into force with a view to give effect to., a convention of unification of certain rules relating to international carriage by air. This is quite clear from Rules 18and 20 of the Rules under Chapter 3 of the above enactment. It is true that the rules could be extended by the Central Government to national flights also by a notification published by the Central Government under section 4 of the Act, but both the counsels for the parties admitted before us that the Central Government has published no such notification. In these circumstances the present case cannot be considered under the provisions of the above‑mentioned Act. As regards the question whether the present case is governed by the provisions of sections 151 and 152 of the Contract Act, the contention of the respondent's counsel is fully supported lay the case of Meckillican v. The Compagnie Des Messageries Marttmes De France (I L R 6 Cal. 227), a Full Bench decision of the Calcutta High Court relied upon by the learned counsel for the appellants. In that case it was held that a foreign steamship company was not a common carrier and as the contract was made in Calcutta, they were bound by the provisions of section 151 of the Indian Contract Act. But in our opinion this decision is in direct conflict with the view of their Lordships of the Privy Counciu in Irrawaddy Flotilla Company Limited v. Bugwandass (18 I A 171). Id that case the Privy Council held that the obligation imposet by the law on common carriers is not founded upon contras but on the exercise of public employment for reward They further held that the liability of common carriers in India is not affected by the Indian Contract Act, 1872. The written law relating to that liability is untouched by the Act ; the unwritten law was not within its scope. The case before the Privy Council arose out of a suit for the recovery of damages on account of bales of cotton destroyed by fire whilst on board a steamship belonging to the defendant company. These bales were put on board to be carried from Myingyan to Rangoon. After the said goods had been put on board a fire broke out. The question arose whether the defendant's goods were goods on hire or bailed as required by sections 151 and 152 of the Contract Act. In this connection the Privy Council arrived at the following conclu sions "These considerations lead their Lordships to the conclusion that the Act of 1872 was not intended to deal with the law relating to common carriers, and notwithstanding the generality of some expressions in the chapter on bailments, they third, that common carriers are not within the Act. They are therefore compelled to decide in favour of the view of the High Court of Calcutta, and against that of the High Court of Bombay." This view of the Privy Council was later followed in Kariadan Kumber v. The British India Steam Navigation Company, Limited (I L R 38 Mad. 941), Bombay Steam Navigation Co. Ltd. v. Vasudev Baburao Kamat (A I R 1928 Bom. 5) and Haji Shakoor‑Gany Firm v. Firm of Volkart Brothers and another (A I R 1931 Sind 124). It was held in these cases that‑‑‑ "The duties and liabilities of a common carrier by sea are governed In India by principles of the English law on that subject and that notwithstanding some general expression in the Chapter of `Bailments', a common carrier's responsibility is not within the Contract Act." A similar view was also taken in a recent decision of the Madras High Court in British India Steam Navigation Co. v. T. P. Sokalal Ram Sait (A I R 1953 Mad. 3). It is therefore quite clear on the abovementioned decisions that the liability of a common carrier by sea is not governed by the Indian Contract Act but by the English common law, since adopted in India. In the present case we are however concerned with the case of carriers by air. There are two aspects of this question; one is its liability of carrier of passengers and the other is its liability of carrier of goods. In a recent decision of the Privy Council in Alfred William Ludditt and others v. Ginger Coote Airways Ltd. (P L D 1947 P C 55), a suit was brought by three appellants who were passengers on an aeroplane operated by Ginger Coote Airways Limited which was flying from the City of Vancouver to Zeballos on Vancouver Island. The aeroplanes caught fire during the flight and it was alleged that due to the negligence of the airways servants each of the appellants was injured. The appellant's claim for the injury which they had sustained was not accepted by the Supreme Court of Canada. The defence of the airways was that by an express condition contained in the ticket issued to each of the appellants they were exempted from liability to compensate the appellants for their injury. In that case, the sole question before the Privy Council was whether an express condition contained in the ticket issued to each of the appellants which exempted the respondent from liability is valid so as to exonerate that company from any obligation to compensate the appellants for their injuries ; or whether it is legal or void. Their Lordships answered the question In the light of the express terms of the ticket, the general law and the relevant provisions applicable to the case. In that connection their Lordships considered what was the general law on the subject and observed as under :‑‑ "The liability of a common carrier of passengers was settled by the decision of the Exchequer Chamber in 1860 in 4 Q B

379. IL was there held that the liability of a general or public or common carrier of passengers is more limited than that of a common carrier of goods. By the custom of the realm a common carrier of goods was at common law, `bound to answer for .the goods at all events . . . . . That law charges this person thus entrusted to carry goods against all events but acts of God, and of the enemies of the King' (loc. Cit. at p. 382). The carrier of passengers is not subjected to a duty so stringent. His obligation at common law, as was held in the leading case just cited, is to carry `with due care'. One reason for the distinction no doubt is that the carrier of goods is a bailee of the goods which he carries, whereas a carrier of passengers is not a bailee of his passengers. Both classes of carriers, however, are subject to the obligations which arise from their exercising a public profession which requires them to carry for all and sundry subject to the obvious limiting conditions." Their Lordships, while dealing with the question before them, further accepted the statement of general principle enunciated in another Privy Council decision in Grand Trunk Railway Company of Canada v. Arthur Robinson (1915 A C 740). The general law on this point was stated in that case by Viscount Haldane in the following terms: "There are some principles of general application which it is necessary to bear in mind in approaching the consideration of this question. If a passenger has entered a train on a mere invitation or permission from a Railway Company without more; and he receives injury in an accident caused by the negligence of its servants, the company is liable for damages for breach of a general duty to exercise care. Such a breach can be regarded as one either of an implied contract, or of a duty imposed by the general law, and in the latter case as In form a tort. But in either view this general duty may, subject to such statutory restrictions as exist in Canada and in England in different ways, be superseded by a specific contract, which may either enlarge, diminish, or exclude it. If the law authorizes it, such a contract cannot be pronounced to be unreasonable by a Court of justice. The specific contract, with its incidents either expressed or attached by law, becomes In such a case the only measure of the duties between the parties, and the plaintiff cannot by any device of form get more than the contract allows him." It would thus be seen that on the view of their Lordships of the Privy Council a carrier of passengers in law is neither an insurer nor precluded from making a special contract with his passengers which may either enlarge, diminish or exclude his general duty to exercise care. According to the observation of the Judicial Committee at page 154 of the Report in para. 13, these principles apply to all carriers and it is immaterial whether the carrier was common or general carrier or not. In our opinion, these observations of the Privy Council apply with full force as to the responsibility and liability of the appellant Airways as carrier of passengers by air. It further appears to us that on the observations of the Judicial Committee in the above‑mentioned case the liability off the appellants as carriers of goods by air is also governed by the same principles, namely, that they are entitled to absolve themselves from liability by making a special contract with the owners of the goods. On this view of the matter it is quite clear to us that the view of the learned Subordinate Court that the appellants were not competent to diminish or exclude their liability in view of the provisions of sections 151 and 152 of the Contract Act is not sound. In our view, just as the provisions of sections 151 and 152 of the Contract Act do not govern the carrier of passengers by sea, they also do not govern and apply to the cases of carriers of passengers by air or carriers of goods by air. Such cases are governed according to 1 the rules recognized under the English common law and on those principles, as observed above, the carriers are entitled to diminish or exclude their liability by special contracts. This, however, does not resolve the difficulty in the present case. As has been noticed the learned Subordinate Court has further found that the appellants had failed to give reason able notice of the special contract to the passengers and there fore held that they were not binding on the respondent. The observations of the learned Subordinate Judge in this connection are as follows: "In the present case I have already stated that the defendants have failed to give reasonable notice. The condition is not printed in bold letters. Because of its unusual character which does not confirm to the normal rules of travel by land, sea or international travel, it should have been printed separately and very prominently and assent to it must have been obtained separately as is the case when risk notes are executed by the Railway when booking certain types of goods." Mr. Irshad Ali, the learned counsel f or the appellant has urged before us that in the present case the respondent purchased the tickets in question four or five days before his travel and he had therefore ample time to make himself conversant with the condi tions on which he was travelling. He further contended that on the face of the ticket the appellant company have made the following note: "Each passenger should carefully examine this ticket, parti cularly the conditions on the next page." According to the learned counsel the insertion of this note on the face of the ticket In a prominent place completely discharges the burden of the appellants that they had given sufficient notice of the conditions of the special contract on which the passenger was travelling by their aircraft. It is no doubt true that res pondent Salahuddin admitted in his cross‑examination that he had bought the ticket at the Chittagong office four or five days before his departure but he further stated that he did not know English and he did not read the conditions written on the ticket. He further admitted that he did not ask anyone to read out the conditions to him. In support of his contention the learned counsel for the appellants relied on three cases; Mackillican v. The Compagnie Des Messageries Marttmes De France; Grand Trunk Railway Company of Canada v. Arthur Robinson and Hood v. Anchor Line (Handerson Brothers), Limited (1918 A C 837). The principle of law deduced from the, last two mentioned cases is that if a contract is one which deprives the passenger of the benefit of a duty of care which he is prima facie entitled to expect that the company has accepted, the latter must discharge the burden of proving that the passenger assented to the special terms imposed. Thus it is quite clear that the burden in the present case that the respondent assented to the special terms imposed was on the appellants. The appellants have not examined any witness in support of their contention that the respondent assented to the special terms imposed. On the contrary they have only relied on the fact that they had inserted a note on the face of the ticket warning the passenger that he should examine the ticket closely and also read the conditions printed inside the ticket. The facts on which the two appeal cases were decided have no bearing on the facts of the present case. In 1915 A C 740 the respondent, by arrange ment with the owner of a horse, travelled in charge of it upon the appellants' railway. The owner's representative, in the presence of the respondent, signed a 'livestock special contract', in a form authorised by the Railway Board of Canada. This contract provided for the carriage of the horse and contained, upon its face, a condition relieving the appellants from liability for death or injuries, even where caused by negligence to a person permitted to travel with the horse at less than full fare. The document was handed to the respondent in order, as he knew, to show that he was travelling with the horse, but neither he nor the owner's representative read the conditions. A half fare was charged for the conveyance of the respondent, and, together with the freight for the horse, was payable by the owner upon delivery. Across the face of the contract was printed a large red type "Read this special contract", and at the side was written (but not as part of the authorised form) "Pass‑man in charge of half fare." It was on these facts that the Privy Council held that this was sufficient notice and the appellants had discharged their responsibility in that respect. Similarly, in 1918 A C 837 the facts were that the ticket was purchased at the defendants' New York office by one of the pursuer's clerks, who, on payment of the passage money, received in exchange a ticket enclosed in an envelope, on the front of which was printed in capital letters a notice requesting the passenger to read the conditions of the enclosed contract. The ticket contained on its face a printed notice that it was issued subject to the conditions thereinafter set out (which included the condition in question) and at the foot a printed request to the passenger to read carefully the above contract. Neither the pursuer nor his clerk was aware of the conditions. It was held by the House of Lords that the defenders had taken all reasonable steps to bring to the knowledge of the pursuer the existence of the conditions and that he was bound by them. The learned counsel for the appellants has invited our attention to the following passage in 1918 A C 837 at page 845 of Viscount Haldane ; "The question is not whether the appellant actually knew of the condition, I have no doubt that he did not. The real question is whether he deliberately took the risk of there being conditions in the face of a warning sufficiently conveyed that some conditions were made and would bind him. If he had signed the contract, he certainly could not have been heard to say that he was not bound to look. The common sense of mankind which the law expresses here would not permit him to maintain such a position. And when he accepted a document that told him on its face that ft contained conditions on which alone he would be permitted to make a long journey across the Atlantic on board the steamer, and then proceeded on that journey, I think he must be treated according to the standards of ordinary life applicable to those who make arrangements under analogous circumstances and be held as bound by the document as clearly as if he had signed it. I am of the opinion that the appeal must fall." In this case also the respondent on the evidence produced on the record must be held to have no knowledge of the condi tions of the alleged special contract. But, can the respondent according to the standard of life applicable to those who make arrangement under analogous circumstances be held as bound by the document as clearly as if he bad signed it? It seems to us that the answer to this question largely depends on the finding whether the appellants had given sufficient notice of the alleged conditions to the passengers travelling by their aircraft. We have examined the tickets issued to the respondent and the conditions of the special contract with which the respondent is concerned. These are not contained in clause (4) but in clause 2 (a) of Exh. P‑

1. A bare examination of this ticket shows that the appellants have failed to discharge the burden that they had taken all reasonable steps to bring to the notice of the respondent the existence of the conditions in order to prove that he was bound by them. In the first place, In this case the note referred to above, on the face of the ticket is not printed in bold letters. Berides, the conditions on the reverse at page 2 are also not in bold letters and it was even difficult for us to gather the terms on which x the appellants claim exemption from all liabilities as bailees of the goods. It was with great difficulty that we ware able to read these terms with the aid of a magnifying Class. In law if the conditions on which the Airways Company seeks to excuse its liability from all responsibility are to be applied, these should not only be prominently brought to the notice of its passengers but should be printed in bold letters too so that they may be easily read. This important circumstance is missing in the present case. It further appears to us that in this country where a large number of people are illiterate and are not conversant with the English language, it is the duty of the Airways Company to be on the safe side not only to print the conditions on which they want to exclude themselves from the liability of loss of goods or injury caused to passengers in bold letters but to print them also in such language with which the passengers are conversant. In our opinion, failure to print them in Urdu and Bengali languages, which are the recognized languages of this country, is bound to cause trouble to the parties concerned and on the conditions that prevail in this country, it will be difficult if not impossible for the Court of law to hold that the conditions of excluding liability have been brought with sufficient care to the notice of the passengers. Another way of protecting the interest of the Airways Company, in our opinion, is that before they issue a ticket to the passenger they should obtain his signature in order to establish that the conditions in question were brought to his notice. The Calcutta case referred to above, in our opinion, cannot be applied on the facts of the present case. In fact, the decision in that case is against the principles laid down in the above‑mentioned two appeal cases and cannot be accepted as laying down sound principles on the House of Lords' decision in Richardson, Spence & Co. and The "Lord Gough" Steamship Company Limited v. Minnie Rowntree (1894 A C 917). In that case Lord Ashbourne made the following speech which, in our opinion, is applicable to the facts of the present case: "My Lords, I also quite concur. The ticket in question in this case was for a steerage passenger‑a class of people of the humblest description, many of whom have little education and some of them none. I think, having regard to the facts here, the smallness of the type in which the alleged conditions were printed, the absence of any calling of attention to the alleged conditions, and the stamping In red ink across them, there was quite sufficient evidence to justify the learned Judge in letting the case go to the jury." In these circumstances, the view of the learned Subordinate Court that the appellants have not given sufficient notice of the condition about the exemption of their liability in case of loss or damage is perfectly justified and no exception can be taken to it. Mr. Irshad Ali lastly urged that the damages awarded in this case by the learned Subordinate Judge are not in accordance with law. According to the learned counsel the Subordinate Court has awarded damages against all principles and canons of law. There is some force in this contention. In our opinion the learned Subordinate Judge was not justified awarding Rs. 2,000 as approximate damages for loss of business. This is in the nature of remote damages which certainly cannot be allowed in the case under consideration. After hearing the learned counsel for the parties, it appears to us that the respondent is entitled to Rs. 710 which he spent on his forced stay in Karachi from the 28th of May 1956 to the 22nd of June 1956. He is further entitled to Rs. 290 as compensation for the loss of his baggage and fruit basket delivered to the appellant company for carrying to its destination. Accordingly we reduce the decree of the trial Court to the sum of Rs. 1,

000. In conclusion we will take this opportunity to draw the attention of the Central Government to extend the rules under Chapter III of Indian Carriage by Air Act, 1934 (sic) to such carriage by air, which are not international, under section 4 of the Act for the sake of uniformity of all cases of transport by air, whether national or international. The object of the Pakistan Carriage by Air Act, 1934 (sic) was to bring about this uniformity. This is clear from the preamble and section 4 of the Act. The' Central Government so far, has not taken any such action. In our' opinion, this step is most necessary in public interest. For the reasons given above the decree of the Subordinate Court is reduced to Rs. 1,000 with proportionate costs throughout. The appeal to this extent is allowed. K. B. A. Appeal partly accepted.