1. The plaintiff has filed this suit for recovery of Rs.5,00,000 from the defendant under Fatal Accidents Act, 1855. The case of the plaintiff is that she is widow of the deceased Sawa who died in an accident on the 29th January, 1988, caused by Bus No.879-551 belonging to the defendant No. 1 and which, at the time of the accident was being driven negligently and recklessly by the defendant No.2 who is the driver of the defendant No. 1.
2. The defendant No. l has filed a written statement generally denying the claim of the plaintiff whereas the defendant No.2 has not appeared to defend the suit which is proceeding ex parte against him.
3. Consent issues filed by the plaintiff and the defendant No. l were adopted but today Mr. Shafqat Hussain states that he does not press the preliminary objections and accepts that the plaintiff is the legal heir of the deceased, and that the accident was caused by a Bus No.879-551 belonging to the defendant No. l and that the defendant No. 2 who was driving the said bus at the time of the accident was the driver/employee of defendant No. 1. In these circumstances both the learned counsel agree that the following issues would accurately reflect the controversy between the parties. The issues framed, with the consent of the parties are, therefore, hereby recalled and the following issues are, by consent, settled:
(1) Whether the death of the deceased Sawa was caused by rash and negligent driving of Bus No.879-551 by the defendant No.2?
(2) What relief, if any, is the plaintiff entitled to?
4. The plaintiff has examined Syed Maqbool Hasan Shah (P.W.1) Wajahat Hussain (P.W.2), Khalid Javaid (P.W.3) and herself (P.W.4). The defendant No. l has not examined any witness.
5. I have examined the record and proceedings in this suit and have heard the learned counsel for the parties; and my findings on the above issues are as follows: Issues No. 1: It is alleged in paragraphs 3 and 4 of the plaint that the defendant No.2 was driving the bus in question in a rash and negligent manner and "dashed deceased Sawa" and that the death of the deceased was caused by negligence of the defendant No.2. The defendant No. l has merely denied the allegations as "false and baseless". Khalid Javaid P.W.3 has stated in his examination- in-chief that he was an eye-witness of the accident and that the Bus No.879-551 came behind the deceased, who was on a bicycle, at a fast speed; and while passing the deceased the bus dashed into the bicycle and the front left portion of the bus hit the deceased; and that the bus then stopped after about 100 yards from the place of the accident. There is nothing in the cross- examination of this witness to rebut his evidence and, indeed, Mr. Shafqat Hussain did not even attempt to point out any rebuttal of the evidence given by the witness. Mr. Shafqat Hussain, however, submitted that merely driving the bus at "fast speed" does not amount to driving it rashly and negligently. The evidence, however, is, in my opinion sufficient to establish that the bus was driven negligently by the defendant No.2 because the deceased was riding his bicycle ahead of the bus and was hit by the front left portion of the bus. It is obvious that the cyclist was within the sight of the driver, the defendant No.2, who could have overtaken him without hitting him, if the bus was being driven without negligence. There is no evidence on record that the deceased was riding his bicycle in otherwise than normal manner or that there were any extraordinary circumstances which made the accident evitable. The conclusion, therefore, is that the defendant No.2 was driving the bus negligently and that the death of the deceased was caused by rash and negligent driving of the defendant No.2.
6. Issue No.2: In view of the finding that the death of the deceased was caused by rash and negligent driving of the defendant No.2 and the admitted fact that the defendant No.2 was, at the time of the accident, an employee of the defendant No. 1, both the defendants are liable in damages to the plaintiff.
7. Mr. Nasir Maqsood has filed a statement showing that the defendants are liable to pay the plaintiff a sum of Rs.2,64,000 by way of damages. Mr. Shafqat Hussain agrees that, if negligence of the defendant No.2 is established, the plaintiff would be entitled to damages amounting to Rs.2,64,000.
8. In the event, the suit is decreed in favour of the plaintiff against the defendants for Rs.2,64,000 with proportionate costs and interest thereon at the rate of 14% per annum from the date of the suit till payment.