( 1 ) THIS appeal is preferred by the insurance company challenging the award of the Tribunal where under the liability to pay the compensation has been foisted on them.

( 2 ) THE facts in brief which led to this appeal are as under:-R. Thippeswamy, the claimant was working as a cleaner in the passenger bus bearing registration No. KA16 A 8889 owned by the third respondent, Smt Geetha. On 14. 6. 2000 in the course of his employment as a cleaner, he got down from the bus and was regulating the movement of the people in front of the bus. At that time the driver of the bus suddenly moved the bus resulting in running of the left front wheel of the bus over the right foot of the claimant. Therefore, he preferred the claim petition under Section 166 of the Motor Vehicles act, 1988 claiming a compensation of Rs. 3,60,000/ -. To the said claim petition he made the owner and the driver of the bus and the insurance company which had insured the bus as party-respondents. The owner and the driver did not contest the matter. They were placed ex-parte. Therefore, the insurance company filed a detailed written statement contesting the claim on all grounds. However, they did not dispute the insurance coverage to the said bus. In view of the aforesaid pleadings, the Tribunal framed the following issues:-

1. Whether the petitioner proves the road traffic accident that took place at private bus stand, Chitradurga, at about 11. 50 am on 14. 6. 2000, was due to rash and negligent driving of the bus bearing registration No. KA 16 A 8889, by its driver? 2. Whether the petitioner proves that he sustained injuries in the accident, and he is entitled to compensation from respondents? 3. To what order?

( 3 ) THE claimant examined himself as P W1 and examined the doctor by name Sri Shivanna Reddy as PW2 and produced 8 documents which are marked as Exs. P1 to P8. On behalf of the respondents Sri Shanthi Prakash, an officer of the insurance company was examined as RW-1 and through him the insurance policy was marked as Ext. R-1.

( 4 ) THE tribunal on consideration of the aforesaid material held that the accident was on account of rash and negligent driving by the driver of the bus in which the claimant sustained injuries and therefore the claimant has established actionable negligence and is entitled to compensation. Thereafter it looked into the evidence of PW-1 the claimant, P. W-2 the doctor and the medical records and has awarded a sum of Rs. 1,05,000/- as global compensation with interest at 6% p. a. , from the date of petition till the date of payment. Aggrieved by the said award of the tribunal dated 16. 1. 2004 the insurance company is in appeal challenging the liability to pay the aforesaid amount awarded.

( 5 ) LEARNED Counsel appearing for the appellant contended that it is undisputed from the material on record that the claimant was working as a cleaner in the bus involved in the accident. He was outside the bus at the time of accident regulating the passengers. At that point of time the driver by his negligent act drove the bus resulting in the bus running over the right leg of the first respondent. Therefore he submits that the claimant was an employee of the insured and that the accident took place in the course of his employment and as he is not one of the categories of employees to whom risk is covered statutorily under the proviso (ii) of sub-section (1) of Section 147 of the Act, the insurance company is not liable to indemnify the insured in so far as compensation payable to the claimant is concerned. Therefore he submits the award of the tribunal in so far as foisting the liability on the insurance company is liable to be set aside. However, the insurance company did not challenge the quantum of compensation.

( 6 ) PER contra, Learned Counsel appearing for the claimant submitted, though the claimant was an employee of the insured and in the course of employment the accident took place, at the time of accident he was not