RAJAN K S Vs. PRAVITH

JUDGEMENT

(1.) The interesting question that arises for consideration is whether the first respondent who was working as a cleaner in a bus could claim as a third party. The first respondent was travelling in a bus. One of the tyres burst. He was asked to replace the tyre. While he was putting the jacky near the rear wheel of the vehicle, the second respondent driver moved the vehicle suddenly by which the jacky turned down and the first respondent was jammed under the bus. According to the first respondent, he suffered serious injuries. Accordingly, he filed a petition against the appellant who was the first respondent and owner of the vehicle, the second respondent who was the driver of the vehicle, and the third respondent which was the insurer. The Tribunal found negligence on the part of the second respondent driver and awarded a sum of Rs.1,38,300/-. The third respondent took up the contention that it is not liable to indemnify the appellant. The appellant was set ex parte. The following is the finding of the Tribunal on Issue No. 4 which related to the liability of the third respondent:

(2.) We heard Shri C. Chandrasekharan, learned counsel for the appellant and Smt. P. A. Reziya, learned counsel appearing for the third respondent Insurance Company. There can be no doubt that the finding of the Tribunal that the appellant cannot claim to be indemnified on the strength of Ext. B1, though it is a comprehensive policy, would not require any interference. This is for the reason that in Ext. B1, as found by the Tribunal, premium was paid covering the liability of passengers, non fare paying passengers, paid driver and / or conductor. Though 'Add PA to driver, conductor and cleaner', as correctly found, the amount payable under this head is not seen paid.

(3.) However, learned counsel for the appellant would contend that having regard to the facts of this case, it is clear that the appellant must be treated as the third party. In this connection, he relied on the judgment of the Karnataka High Court in New India Assurance Co. Ltd. v. R. Thippeswamy and Others, 2007 ACJ 1761. Therein, the claimant who was a cleaner in a passenger bus, got down from the bus and was regulating movement of people in front of the bus. The driver of the bus suddenly moved the bus, running it over the right foot of the claimant. A learned Single Judge of the Karnataka High Court took the view that the cleaner would be a third party. In paragraph 16, the Court held as follows: