P L D 1976 Karachi 363 Before (PLP)

I. MAHMUD. J.-This is a suit under the Carriage By Air (International Convention) Act, 1966, for the recovery of damages amounting to Rs. 82,196 alfeged to be sustained by the plaintiffs who are members of the family of I. A. Butt, who died in an air crash at Cairo on 20-5-1965 while travelling as passenger in an aircraft belonging to the Pakistan International Airlines Corporation.

2. The suit was filed on 19-5-1967 in the name of eight plaintiffs, six of whom are the present plaintiffs 1 to 6, namely three brothers and three sisters of the deceased and the deceased's mother Mst. Sarwar Sultana (original plaintiff No. 4) and the sister of the deceased Mst. Shabzada Sultana (original plaintiff No. 7). Mst Sarwar Sultana died pending the Suit on 2-6-1970 leaving only the then plaintiffs as her legal heirs and on the application of the remaining plaintiffs her name was dropped from the present amended plaint. With regard to Mst. Shahzada Sultana, as she had declined to join as co-plaintiff, she was joined as pro forma defendant No. 2 in the amended plaint.

3. The case of the plaintiffs is that they are members of the family of I. A. Butt, who was the head of the family; that he died in an air crash at Cairo on 20-5-1965 while travelling as a passenger in a Boeing Aircraft belonging, to the defendant No. 1, the Pakistan International Airways Corporation (hereinafter referred to as the "P. I. A. "). That as members of the deceased's family, they have sustained damage by reason of his death and although they have suffered more damages, they claim only the maximum limit of 250,000 Francs (equivalent to Pakistan Rupees 79,000) for loss of life prescribed under paragraph 22 of the First Schedule to the Carriage By Air (International Convention) Act, 1966 (hereinafter referred to as "the said Act"), and Rs. 3,196 on account of loss of baggage, making a total claim of Rs. 82,

196. That the plaintiff No. 1 has obtained a certificate from the High Court under paragraph 6(1) of the Second Schedule to the said Act, to the effect that the present six plaintiffs, namely three brothers and three sisters, as well as Mst. Sarwar Sultana, the deceased mother (original plaintiff No. 4) and Mst. Shabzada Sultan, deceased sister (original plaintiff No. 7) are members of the passenger's family and that the plaintiff is entitled to recover com pensation from the P. I. A. for payment to the family of the deceased in the shares as per family arrangement settled by them as shown therein. The plaintiffs further pleaded that the deceased was Managing Director of High land Travels (Pakistan) Ltd., which company carried on business as travel: agents at Lahore and Karachi and that the said business bad suffered due to his death, which loss some of the plaintiffs, who were shareholders of the company, are entitled to recover from the P. I. A.

4. In its written statement, the P. I. A. denied the claim of the plaintiffs and has put the plaintiffs to strict proof that they had sustained damage by reason of the passenger's death. It was further denied that the plaintiffs were entitled to recover business loss alleged to have been suffered by High land Travels (Pakistan) Ltd. It was however, admitted that a sum of Rs. 18,196 was offered to the deceased's mother Mst. Sarwar Sultana, who was then alive, on the plaintiffs' own admission that she was the only dependant of the deceased I. A. Butt, but this offer was declined as the plaintiffs have resiled from their admission that the mother was the only dependent member of the deceased's family. They therefore, prayed for the dismissal of the suit.

5. The plaintiffs led evidence and examined three persons, namely Ghulam Rabbani Butt, P. W. 1, the plaintiff No. 1 in suit, Khursheed Anwer Choudhry, P. W. 2, a friend of the deceased and Jamil Ahmed, P. W. 3, Accountant of Highland Travels (Pakistan) Ltd. The defendants led no evidence.

6. When the case came up for hearing of arguments before me, the issues were recast by consent of counsel. They now read as follows; (1) To what extent if any, have the plaintiffs or any of them, sustained' damage by reason of the death of the deceased ? (2) Whether the plaintiff No. I was duly authorised to act on behalf of the plaintiffs Nos. 2 to 6? As such is the plaint properly verified ?" If not, what is the effect ? (3) To what relief, if any, are the plaintiffs entitled ? (4) What should the decree be ?

7. After considering the evidence and the arguments of counsel, I have come to the following findings on the issues: This is the most important issue in the case. In the absence of any defence set up by the P. I. A. it must be held that it is liable for the damage sustained as a result of the death of the passenger, I. A. Butt. The liability arises under paragraph 17 of the First Schedule to the said Act which states that the Carrier is liable for damage sustained in the event of the death of a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking. Paragraph 1 of the Second Schedule to the said Act, states that the liability of the carrier shall be enforceable for the benefit of such of the members of the passenger's family as sustained damage by reason of his death. On the date of the death on 20-5-1965, the plaintiffs, the defendant No. 2 and Mst. Sarwar Sultana (since deceased), being respec tively, brothers, sister and mother of the deceased were included in the ,expression "member of a family" used in the last mentioned paragraph. The only question therefore, which arises for my consideration is whether any or all of the said members of the deceased's family had sustained damage by reason of the death.

8. Since the liability is enforceable for the benefit of the members of the passenger's family as have sustained damage by reason of his death, it is -thought that (subject to the limitation of liability) damages will be assessed .on the same principles as in the case of actions under Fatal Accidents Act, 1855 which are also brought for the benefit of the deceased's wife, husband, parent and child. See Halsbury's Laws of England, Volume V, Article 542, foot note (a) and the opinion expressed in Shawcross & Beaumont on "Air Law", 3rd Edition, 1966, Vol. 1, pages 444 and

506. It is a well-settled principle of law that the measure of damages recoverable under the Fatal Accidents Act, 1855 is the pecuniary loss suffered as a result of the deceased's death by each individual dependent entitled to sue. I have therefore, to examine the evidence produced by the plaintiffs in order to ascertain what if .any, is the pecuniary loss suffered by each of the members of the deceased's family.

9. But before I do so, I must discuss a submission made by Mr. Sharaf Fareedi, learned Advocate for the plaintiffs, that some of the plaintiffs, who are shareholders in the company, Highland Travels (Pakistan) Ltd., are entitled to claim loss of earnings suffered by that company, on account of the death of

1. A. Butt, its Managing Director, which has resulted in loss of future pecuniary benefit to them as shareholders in the company. Counsel's contention is that this species of business loss is also recoverable from the P. I. A. He referred to the evidence of Ghulam Rabbani Butt (P. W. 1), the plaintiff No. 1 in the suit, who stated that Highland Travels (Pakistan) Ltd., was a private limited company which carried on business as travel agents with an head-office at Lahore and a branch office at Karachi. The deceased as well as himself, his brother Iftikhar, the plaintiff No. 3, his mother Mst. Sarwar Sultana (original plaintiff No. 4) and his sister Munawar Sultana plaintiff No. 4 were shareholders in the company besides two -strangers. The deceased owned 80 % of the shares in this company while out of the remaining shares, 15 % were owned by them. The deceased I. A. Butt then aged 51 years, was the Managing Director of the company and was attending to the travel agency business at Lahore, while he was looking after the business of the Karachi branch. The witness further stated that after she death of I. A. Butt, the company lost a few valuable customers and the overdraft facilities extended to the company by Standard Bank were also withdrawn. He produced two statements of profit & loss account of the company for the assessment years 1965-66 and 1966-67 (Exhs. 7/1 and 7/2) which were accepted by the Income-tax Office, Lahore. These showed that the commissions earned during the year by the Lahore office dropped appreciably after his death from Rs. 1.21,253 to Rs. 86,211.

10. In support of his submission that damage sustained in the event of -the death of a passenger was not limited to purely pecuniary loss, Mr. Sharaf Fareedi cited the case of Preston and another v. Hunting Air Transport Ltd. ((1956) 1 Lloyd's L R 45). In that case, two infant children aged 3 and 4 years claimed in respect of the death off their mother, already then a widow, who died in an air crash, a sum in addition to that for purely pecuniary loss. Omerod, J. awarded a substantial sum as damages for the loss of the care of their mother at an age when probably they needed it most. The learned Judge described this item of damage "possibly of a more intangible character by reason of the loss of a mother", and as being something more than the purely financial loss suffered by the children. The authors of Shawcross & Beaumont on "Air Law", referred to above on page 445 have expressed doubt as to the correctness of this decision and observe in footnote 14 that the decision was not followed by Megaw, J. in Pevee v. Brown ((1964) 108 Sol. Jo 219) a case under the Fatal Accidents Act stating : "It was financial loss and financial loss only, which was recoverable". The authors state that damages other than pecuniary damages will not be recoverable under the Carriage by Air Act, 1961 (which contain the same provisions in regard to damages) as the same rules apply under that Act as under the Fatal Accidents Act.

11. Mr. Sharaf Fareedi next cited Ashcroft v. Curtin ((1971) 3 All E R 1208) in which a sum was awarded for loss of earnings and diminution of profits of a private company, which resulted from personal injuries received by its Managing Director, who was seriously injured in a motor-car accident and therefore, was unable to devote the required attention to the company's business. That case is clearly distinguishable, as it related to a claim of damages for personal injuries and was not a case under the Fatal Accidents Act. Nor was it a case under the English Carriage by Air Act. On the other hand, there is direct authority for the view that the loss of pecuniary benefit which is recoverable under the Fatal Accidents Act has to be one which arises from the family relationship between the deceased and the dependant and not a benefit from any other relationship, between the dependant and the deceased. In this connection the case of Burgess v. Florence Nightingale Hospital for Gentlewomen and another ((1955) 1 Q B 349) may be referred to. In that case, the plaintiff and his wife were professional dancing partners. The couple's joint earnings were paid 'to the husband in cash and the money was put into a drawer and either of them took from the drawer whatever was necessary for any particular purpose. The wife died as a result of negligence of a surgeon and the plaintiff husband claimed damages, under the Fatal Accidents Act, in respect of the loss of his wife as a dancing partner, in addition to loss of her contributions to their joint living expenses. It was held that the claim of damages on the first head was not permissible as the benefit to qualify under the Act had to be one which arose from the relationship between the parties of husband and wife ; that the benefit to the husband arising in the dancing partnership, could not properly be attributed to the relationship of husband and wife but from another relationship, namely, a business relationship of partners, which was superimposed on the family relationship. Applying this principle to the 'facts of the case before me, I am clearly of the view that, even if the alleged Toss of earnings suffered by the company on account of the death of I. A. Butt, its Managing Director is accepted, resulting in loss of future benefit to the shareholders of the company, such as reduced dividends, etc., it cannot B be said that the loss arose to them out of their family relationship with the deceased. That loss would have arisen to the shareholders even if the Managing Director was not a family member related to the shareholders. On merit also, I am not satisfied that the plaintiffs have proved the business loss alleged to have been suffered by the company. It is true that the commissions earned by the Lahore office after the death of I. A. Butt dropped considerably, but on the other hand, commissions earned by the Karachi office increased, resulting in an overall increase of income of the company during the year. The net profits returned to tax for the two assessment years, before and after the death, also showed an increase from Rs. 7,659 to Rs. 11,589 Accordingly, I reject the claim of damages put forward by the concerned plaintiffs as shareholders of the company for the alleged business loss.

12. Now I will examine the evidence produced by the plaintiffs regarding the alleged pecuniary loss suffered by each of the members of the deceased's family. Taking first, the case of the three brothers, the plaintiffs Nos. 1 to 3, Ghulam Rabbani Butt (P. W. 1) stated that deceased I. A. Butt was their eldest brother aged 51 years and was unmarried. All the brothers and sisters were adults and, except Iftikhar plaintiff No. 3 were married and lived separately with their families. Mst. Sarwar Sultana, the mother and Iftikhar only were living with the deceased. The plaintiff No. 1 who was a Director of the company was looking after the Karachi office and was drawing a remune ration of Rs. 1,000 per month which was increased to Rs. 1,500 after the death of I. A. Butt. His wife and plaintiff No. 3 Iftikhar, became Co-Directors with him after the death of I. A. Butt. Iftikhar was receiving a remuneration of Rs. 1,000 per month, while his wife was getting Rs. 500 per month. With regard to Ghulam Yazdani Butt, the plaintiff No. 2, there is no evidence whatsoever as to his occupation or earnings. Ghulam Rubbani Butt further stated that the brothers and sisters were dependent upon their deceased elder brother. But in cross-examination by Mr. Saleem Akhtar, learned Advocate for the P. I. A. be was confronted with Exh. 7/4 dated 31-8-1965 which were the answers to the questionnaire submitted by him to the P. I. A. In Exh. 7/4 in answer to question No. 14 enquiring whether any of the members of the family of the deceased were dependent upon him and if so, how much per month was the deceased contributing to such members, he answered as, follows;

"14 (a) Mother was dependent on the deceased. (b) All other claimants are independent." Therefore, when the P.

1. A. by its letter dated 25-8-1966 (Exh. 7/6) offered to the mother compensation of Rs. 18,196 comprising Rs. 15,000 for loss of life and Rs. 3,196 for loss of baggage, the plaintiff No. 1 resiled and wrote a letter to the Advocates of the P.

1. A. (Exh. 7/7) dated 7-10-1966, pointing out that his answers to question 14(b) was a "typographical error" and requested that the error be rectified by reading "dependent" in place of "independent". The excuse of "the typographical error" appears to me to be false in the circumstances and an afterthought, considering that they were majors, married and living independently from the deceased on their own income. Even other wise, the evidence of this witness is prevaricated and appears to be as, unreliable as it is vague. I would therefore, reject the claim of the plaintiffs Nos. 1-3.

13. With regard to the sister Munawar Sultana, the plaintiff No. 5, the evidence is that her husband bad retired from Government service as an, overseer and was earning a pension and that she has two sons and one daughter, all of whom are majors. Both Ghulam Rubbani Butt (P. W. l)and Jamil Ahmed (P. W. 3) the Company Accountant stated that she was, dependent on the deceased. But, none of them say how much money used to be paid to her by the deceased brother, or mention any circumstances to show her dependency on the deceased. I would therefore, hold that her claim has not been proved.

14. With regard to the two sisters, Anwar Sultana, Tasawar Sultana, plaintiffs Nos, 5 and 6 respectively, the evidence is that the husband of Anwar Sultana was-unemployed and remained at home as he was not keeping good health and that she has five children. Tasawar Sultana is a widow and she has about six or seven children. Ghulam Rubbani Butt, P. W. 1 stated that his deceased brother was used to help both these sisters. Jamil Ahmed, P. W. 3, the Company Accountant, stated that the deceased used to support these two sisters and used to pay Rs. 200 per month to Anwar Sultana and Rs. 300 per month to Tasawar Sultana ; that sometimes the amounts used o be paid through him and sometimes the two ladies used to come and receive the same from the Company's office. He further clarified it by stating that sometimes, he used to go and deliver the amount to the two ladies at their houses and that the payment was made to the two ladies from the personal account of I. A. Butt and not from the company's account of the personal account of the deceased was not produced. In cross examination, he stated that he never maintained any personal account of the deceased and that the deceased used to pay the money in cash from his own pocket. While according to this witness a sum of Rs. 300 per month was being paid to Mst. Tasawar Sultana, Ghulam Rubbani Butt, P. W. 1 stated that it was Rs. 150 per month. Even otherwise, these two sisters have received benefits after the death of the deceased brother. They have received a share out of his bank balance of Rs. 12,300 and have inherited shares in his house at Anarkali, Lahore said to be worth Rs. 50,

000. It is also significant that none of the two sisters came forward to give evidence. On this evidence, which I consider unsatisfactory, it cannot be said with any degree of assurance that the claim of dependency of these two ladies has been satisfactorily established. For these reasons, I would therefore, reject their claim.

15. No evidence was led on behalf of the sister of the deceased, Shahzada Sultana, the defendant No.

2. Her claim as original plaintiff No. 7 is accordingly rejected.

16. For the reasons above discussed, I hold that the plaintiffs have failed to prove that any of them has sustained pecuniary damage by reason of the death of the deceased. The certificate obtained by the plaintiff No. I from the High Court under paragraph 6(l) of the Second Schedule to the said Act, entitling him to recover compensation, is therefore irrelevant. The effect of the certificate is merely to enable the holder to give a discharge for payment made by the Carrier in accordance with the certificate under rule 8 of the Second Schedule. This issue is therefore, decided in the negative.

17. Finally, with regard to the mother, Mst. Sarwar Sultana, the evidence is that she was living with the deceased and she had no independent source of income, and was dependent upon her deceased son. Ghulam Rubbani Butt, P. W. 1 stated that his deceased brother must have been paying her about Rs. 200/300 per month. Although this may perhaps be a little exaggerated, I would take a liberal view and accept a figure of Rs. 250 per month as the amount, she used to receive from her deceased son. This woul3 amount to the sum of Rs. 3,000 per year and for five years that she lived, the total amount would come to Rs. 15,000 which I award as damage sustained by her. Incidentally, this was the precise amount offered by the P'. I. A. to her, which was declined.

18. Under paragraph 2 of the Second Schedule to the Act, the action to enforce the liability of a carrier may be brought "by any person" for whose benefit, the liability is enforceable but only one action shall be brought in Pakistan in respect of the death of any one passenger and every such action by whomsoever brought shall be for the benefit of all such persons, so entitled. Accordingly, from the wording of this paragraph, it is clear that the plaintiff No. 1 could himself have commenced this action for the benefit of all other plaintiffs without any specific authority from them. Issue is answered accordingly.

19. I have already awarded the sum of Rs. 15,000 to Mst. Sarwar Sultana, the mother of the deceased as damage sustained by her. There is, no dispute with regard to the amount of Rs. 3,196 offered by the P. I. A. to her, for loss of baggage. I would therefore, allow this amount also. Accordingly. I would decree the suit for Rs. 8,

196. This amount would have been payable to the mother Mst. Sarwar Sultana had she lived. On her death on 2-6-1970 her right to receive the said amount devolved under Muslim Law as an inheritance, upon her legal heirs, namely, her sons and daughters, the plaintiffs Nos. 1 to 6 and the defendant No.

2. Accordingly, this amount shall be distributed among her legal heirs in accordance with their respective shares under the Muslim Law of inheritance applicable to them. As success in the case is divided, I would leave the parties to bear their own costs. S. Q. Suit partially decreed: