C.Y. Somayajulu, J.
1. Respondents 1 and 2 filed a petition before the Commissioner for Workmen's Compensation seeking compensation of Rs. 1,00,000/- from the third respondent and the appellant alleging that Krishna Murthy (the deceased), father of respondents 1 and 2, who was employed by the third respondent as Mines Manager, died out of and during the course of employment on 25-10-1993 at about 4.00 p.m due to an explosion that took place when the proclainer hit an explosives dump.
2. Third respondent filed its counter admitting that the deceased was employed by it and as the proclainer that caused hit on the arms dump was insured with the appellant, the compensation, if any, is payable to respondents 1 and 2 only by the appellant.
3. Appellant filed its counter putting respondents 1 and 2 to proof of the averments in the petition and contending that inasmuch as the death of the deceased did not take place while he was travelling in the proclainer, it is not liable to pay any compensation under the provisions of the Workmen's Compensation Act, 1923 (for short 'the Act').
4. In support of their case respondents 1 and 2 examined one witness as A.W.1 and marked Exs.P1 and P2. On its behalf third respondent examined one witness and the appellant examined one witness and marked Exs.A1 to A4.
5. Holding that the death of the deceased occurred out of and during the course of the employment with the third respondent the Tribunal directed the third respondent and the appellant to pay Rs. 54,434/- to respondents 1 and 2. Aggrieved thereby the insurer of the proclainer filed this appeal.
6. Heard learned Counsel for the appellant. There is no representation on behalf of the respondents though served.
7. The main contention of the learned Counsel for the appellant is that since the appellant is liable to answer the claims made under the Act only when an accident occurs if the employees of the third respondent were travelling in the proclainer and not to third parties who are injured by the insured proclainer, who have a remedy open against the appellant only if they make a claim under Motor Vehicles Act, 1988, and since the deceased in this case died when he was not travelling in the vehicle, the Commissioner under the Act has no jurisdiction to make the appellant liable to pay compensation to respondents 1 and 2.
8. I find considerable force in the contention of learned Counsel for the appellant. Though, the accident involving the deceased occurred out of and during the course of his employment with the third respondent, as the result of an explosion caused by the proclainer when it hit an explosives dump, when the deceased admittedly was not in the proclainer at the time of the accident he would be a third party vis--vis the proclainer. The policy issued by the appellant to the third respondent covers the risk of the driver, cleaner and non fare paying passengers only. So the appellant is answerable to any claims made under the Act, only if they are made by the driver, cleaner or non fare paying passengers (i.e., employees travelling as passengers) or their legal representatives in case they suffered injuries or die while travelling 'in the proclainer'. Any claim made by an employee of the third respondent who was not using the vehicle as a driver or cleaner or passenger made under the Act need not be answered by the appellant. The liability of the appellant to the employees of the third respondent, who were not using the proclainer insured by the appellant as driver, cleaner or passengers need be answered by it only when the claim is made under the provisions of the Motor Vehicles Act, 1988. So, the Tribunal was in error in making the appellant also liable to pay the compensation payable to respondents 1 and 2, for the claim made by them under the Act.
9. In the result, the appeal is allowed and the claim of respondents 1 and 2 against the appellant stands dismissed. No costs.