Daily Times

Negligence is a principle of the common law of tort. It belongs to the civil branch of law. In layman terms, if it is shown that the defendants failed to take reasonable care or acted carelessly, they owe compensation to the claimants, who suffered injury or loss as a result of their negligence. It is a highly developed area of law with many principles and doctrines.

There have been many fatal plane crashes in Pakistan. One fatal accident occurred in July 2006. Pakistan International Airlines (PIA) Flight 688, a passenger flight from Multan to Lahore, crashed. All of the 41 passengers along with four crew members onboard were killed. It was the deadliest plane crash of that time.

It was revealed in the report conducted by Pakistan Civil Aviation Authority that the crash could have been avoided. There was engine mismanagement by the pilots which led to the accident. There was poor maintenance and improper assembly of right engine. The aircrew took actions which were contrary to the standard operating procedures.

A claim in the tort of negligence was brought against the airline and Civil Aviation Authority (the defendants) for recovery of damages/compensation by the widow and three children of the deceased (the claimants).

As an inadequate compensation, PIA district officer Multan offered the claimants a sum of Rs500,000 to Rs2 million in an intimidating and humiliating manner. The claimants stood against this uncivil and unethical behaviour of the national airline. The Sindh High Court (SHC) granted the claimants Rs99.82 million. This amount also included compensation for funeral expenses and losses of personal baggage, wristwatch and mobile cell phone etc. Furthermore, the court also decreed that the claimants are entitled to a profit/markup of Rs2 million from the date of death of the deceased till the date of decree at the normal banking rate. The case was decided on June 6, 2018.

In deciding the case, the SHC applied the Fatal Accidents Act of 1855, the preamble to which states that the Act was introduced to provide compensation to families for loss occasioned by the death of a person caused by an actionable wrong. The actionable wrong would be the plane crash that occurred.

The Carriage By Air (International Convention) Act of 1966 was applied along with the Act of 1855 in the Flight 688 case, since the deceased had onward journey to Istanbul, he was an international traveller. The act of 1966 imposes strict liability. It shifts the burden of proof on to the defendant as opposed to the claimants. Under the Act of 1966, claimants only had to bring up their case and onus of proof in that regard would rest with the airline to disprove the same.

Ghulam Sarwar Khan, the federal minister for aviation, made an announcement on May 23 of compensating the victims with a mere sum of Rs1 million only

Unfortunately, tragedy struck again when the ill-fated PIA flight PK-8303 crashed on May 22, 2020, taking the lives of 97, out of the 99 people on board. It is being reported by many notable sources that the crash was possibly a result of engine failure. The cause of the accident will be confirmed after the final investigation report.

Ghulam Sarwar Khan, the federal minister for aviation, made an announcement on May 23 of compensating the victims with a mere sum of Rs1 million only. Nothing can bring back the deceased to their loved ones. I can’t imagine the pain and suffering of the grieving families, they lost their loves ones: their mothers, fathers and children. Most families lost the sole breadwinners of their families. In these circumstances, making an announcement for a sum as low as one million rupees is an example of uncivil behaviour.

Carriage by the Air Act of 2012 states that the compensation to be provided, in case of death of a passenger, should be an amount not exceeding Rs5 million for each passenger. The rules further state that the airline is liable for damage sustained in case of death or bodily injury of a passenger on the condition that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking. Furthermore, the rules provide that the liability of the carrier in the case of destruction, loss, or damage is limited to Rs1,000 per kilogramme for each passenger.

One cannot put a price on the life of a human as the human life is priceless but one can be considerate in providing compensation. I wish the airplane organisation had acted with some ethics in compensating the grieving families. Their behaviour and the amount of compensation announced is deeply upsetting, especially in the middle of a life threating pandemic.

This is not the only instance where an airline has behaved unethically. The ill-fated Airblue Flight 202 crashed in 2010 and yet even until 2018 compensation had not been paid to the families. During the hearing of a case regarding pilots’ fake degrees by the Supreme Court in 2018, aggrieved persons informed the apex court that they had not been paid complete compensation till date. The chief justice of that time, Mian Saqib Nisar, upon hearing that ordered that the amount be deposited in court.

Nevertheless, a claim in the tort of negligence can be made. In the PIA Flight 688 case, ninety-nine million, eight hundred and twenty two thousand sixty rupees were granted to the grieving family of the deceased by the SHC, on the facts of that case as compensation for the negligence of the airline that caused the fatal crash. My deepest condolences remain with the families of those affected. I cannot imagine apprehending what they’re going through.

Barrister of the Honourable Society of Lincoln’s Inn and teach United States constitutional law and civil law to Pakistani LLB students