K.N. Shukla, J.
1. This order shall also dispose of Miscellaneous Appeal No. 73 of 1973 (Samrathsingh and Ors. v. Dwarka Prasad and 4 Ors.) preferred by the claimants.
2. One Durgsingh was a victim of a motor vehicle accident that took place on Chanderi-Shivpuri road on 8.8.1968 between 4 to 5 a.m. It was not disputed that the motor vehicle, a goods-truck, bearing No. M.P.G. 4912, belonged to appellant-Dwarka Prasad, a partner of the firm Radhakishan Shyamlal. On the fateful day, it was driven by respondent Fadali. It is not disputed now that at the time of the accident, deceased Durgsingh was sleeping on the main road and had covered himself fully from head to toe with a blanket. The head lights of the truck were on when the deceased was run over. There is dispute on the point whether the driver blew the horn or not. The effect of this failure of the driver will be considered, if necessary, later.
3. The death was instantaneous. Claimants alleged that the accident occurred due to rash and negligent act of the driver who did not take proper precautions when he noticed a person sleeping on the road. Claimants impleaded two insurance companies also, though now, it is admitted that the truck was not insured at all.
4. The relationship, on the basis of which claimants put forth their claim, was that the deceased Durgsingh's father and claimant Samrathsingh's father were real brothers. Durgsingh did not leave behind any nearer relative as he was a bachelor. His parents had died during his childhood and he was brought up by claimant Samrathsingh and his father.
5. The amount of compensation was calculated on the basis that deceased Durgsingh was employed at a salary of Rs. 70/- per month. At the time of his death, he was aged about 30 years. The expectancy of his life was estimated as 80 years. A sum of Rs. 40,320/- was claimed as loss of income. Rs. 1,500/- as funeral expenses and Rs. 8,180/- as compensation for mental suffering.
6. Appellant-owner Dwarka Prasad and Fadali, the driver of the truck, denied any negligence on the part of the driver. They pleaded that deceased Durgsingh was sleeping on the main road just at the spot where it took a sharp turn. He had covered himself with a black blanket on a tar road and in the early hours of the dawn, the driver could not notice or anticipate that some person was or could be sleeping on the main road. There was no negligence on his part and the appellant was not liable for any compensation. They further pleaded that the claimants No. 1 to 3, i.e. Samrathsingh and others, were not entitled to claim any compensation because the deceased had left behind him a widow and a brother who had precedence over these claimants in the line of succession. They also denied the alleged age of the deceased and the amount of compensation claimed by the appellants.
7. The Claims Tribunal held that the accident occurred due to negligence of the driver of the offending truck and he and the owner of the truck were liable for compensation. The Tribunal further held that the deceased did not leave behind any nearer relative, i.e., a widow or a brother, and the applicants No. 1 and 2, i.e. Somrathsingh and Mohanlal, were entitled as legal representatives to claim compensation. The age of the deceased was estimated as 40 years and the Tribunal awarded Rs. 3,600/- towards loss of dependency and Rs. 400/- for mental suffering, in all it awarded Rs. 4000/- as compensation.
8. The owner Dwarka Prasad has challenged the award while in the cross appeal the claimants have prayed for enhancement of the award.
9. Before dealing with the question of negligence and the liability of the driver and the owner, I will consider the question of claimants' right to claim compensation as legal representatives of the deceased. Section 1A of the Fatal Accidents Act, 1855 (hereinafter referred to as 'the Act') lays down that an action for recovery of damages shall lie for the benefit of the wife, husband, parent and child, if any, of the deceased. Admittedly, claimants herein did not fall in the category mentioned in Section 1A of the Act and they were not entitled to claim damages for the loss resulting from such death. This has been made clear by this Court in Shanker Rao v. Babulal Fouzdar 1980 A.C.J. (Supp.) 338 (M.P.) and Ramesh Chandra v. Madhya Pradesh State Road Transport Corporation 1983 A.C.J. 221 (M.P.).
10. Learned Counsel for the claimants, however, pleaded that the claimant? were entitled to compensation for pecuniary loss to the estate of the deceased occasioned by the wrongful act of the driver of the truck in view of Section 2 of the Act. In Ramesh Chandra's case the Division Bench of this Court has considered the scope of Section 2 of the Act for calculating damages recoverable for loss to the estate. It was observed, quoting Gammel v. Wilson 1982 A.C.J. 409 (H.L., England) that damages in respect of loss of earnings 'of the lost years' meaning thereby the period during which the deceased would have continued to earn but for his death in the accident, should be assessed after deduction of an estimated sum to represent the victim's living expenses daring those years.
11. But to find a claim Under Section 2 of the Act, it must be proved that claimants are the heirs of the deceased. In the instant case this was not proved. Claimant's own witness Natthu C.W. 3 stated that deceased Durgsingh had a brother by name Saru. Saru died leaving his widow Khumaniya (N.A.W. 1) and a son Bhabutisingh. Under Section 8 of the Hindu Succession Act, Bhabutisingh would get precedence in succession over claimants Samrathsingh and Mohanlal who were agnates being sons of deceased Durgsingh's father's brother. Schedule to Section 8 of the Hindu Succession Act classifies the heirs. Deceased Durgsingh's brother's son was entitled to his estate as an heir under entry IV of Class II of the Schedule. Even Khumaniya was entitled under entry IV of Class II of the Schedule. Claimants were near agnates under Clause (c) of Section 8 of the Hindu Succession Act and could not inherit the state when nearer heirs of the deceased were alive. Even if it was held that Khumaniya was not the legally married wife of the deceased, claimants could not get any compensation on account of the loss to the estate of the deceased. Thus, neither Under Section 2 of the Act the claimants were entitled to be awarded any damages on account of the death of Durgsingh.
12. On merits also, the driver and the owners could not be made liable for damages. Admittedly, the accident occurred before dawn when visibility was very poor. It was also proved that the deceased was sleeping on the main Chanderi-Shivpuri road. It could not be within the comprehension of a reasonable person that a human being would recklessly sleep on the main road covering himself with a black blanket. In these circumstances, no negligence can be attributed to the driver of the truck.
13. In the light of these findings, I hold that the Tribunal erred in awarding any compensation to the claimants. Misc. Appeal No. 39 of 1973, filed by the owner of the truck, is allowed and the award is set aside. The claim stands dismissed.
14. For the same reasons, Misc. Appeal No. 73 of 1973, filed by the claimants for enhancement of the compensation is dismissed. It will not be proper to saddle costs on the claimants who lost a close relative. The petition was misconceived but this can be attributed to misunderstanding about the correct legal position. I, therefore, direct that the parties shall bear their own costs throughout.