1. CMA No.1086 of 1995is preferred against the order dated 6-6-1995 in WC No.Bl/1057/94 NF and CMA No.1087 of 1997 is preferred against the order dated 6-6-1995 in WC No.Bl/1055/94 NF, passed by the Commissioner for Workmen's Compensation and Assistant Commissioner of Labour, Nizamabad, by the Insurance Company.
2. Since both the CMAs., arise out of the same accident and as the issue involved in'both the appeals is one and the same, the appeals are disposed of by a common judgment.
3. The brief facts of the case leading rise to these CMAs. are as follows:
On 8-5-1994 at 8.00 a.m. the applicants, who are the respondent No.1 in both theappeals, along with others were travelling as labourers in the tractor Bearing No.AP 25 2723 and trailer At' 25-T 3036 from Bardipur to Nizamabad canal karta by loading 'moram', and that when they reached near Station bridge of Bardipur village, the tractor and trailor turned turtle due to rash and negligent driving of the driver of the tractor and trailer, and fell down along with 'moram' and the applicants-respondents received injuries. It is stated that the respondent-applicant, in WC No.Bl/1057/94 has received multiple injuries in the accident i.e., right leg fracture, right side shoulder fracture and injuries to other parts of the body. He stated that he is aged about 18 years and was earning Rs.3,500/- per month and therefore, claimed a total compensation of Rs.1,00,000/- for the personal injures caused to him. The Commissioner relied upon evidence of PW2-Dr. K. Laxminarayana, Assistant Civil Surgeon, Government Head Quarter Hospital, Nizamabad and also Ex.AlO the disability certificate issued by PW2. PV2 who deposed that the applicant-respondent has got 60 per cent permanent partial disability. The Commissioner has fixed the wages of the inured at Rs.1,000/- per month as per Section 4 of the Workmen's Compensation Act, 1923, (for short 'the Act'), and for determining the compensation, by taking half of the wages i.e., Rs.500/-, 60% disability of workman, and the age of the injured as 18 and applying the relevant factor 226.38 as per Schedule 4 of the Act, the Commissioner has determined the compensation at Rs.67,914/-. Against this order, CMA No.1086 of 1995 is preferred.
4. CMA No. 1087 of 1995 is preferred against the order in WC No.Bl/1055/94 dated 6-6-1995 by the Insurance Company. This WC was preferred claiming a total compensation of Rs.1,00,000/-, wherein the Commissioner on evidence has assessed the compensation at Rs.56,305/- towards injuries sustained by the injured. The Commissioner relied on the evidence of Doctor-PW2 whowas working as Assistant Civil Surgeon, Government Head Quarter Hospital, Nizamabad. PW2 deposed that the applicant-respondent has got 50% permanent partial disability of chest movements and there are restricted movements of chest and attacks of headache and giddiness. He issued Ex.AlS indicating the percentage of disability as 50%. On the basis of the above the medical evidence adduced on behalf of the applicant, the Commissioner has fixed the wages of the workman as Rs.1,000/- as per Section 4 of the Act, and by applying the relevant age factor as 225.22, the age of the applicant as 19 years, the disability of 50% and by taking half of the wages i.e., Rs.500/-, has assessed the compensation at Rs.56,305/-.
5. Sri M. Srinivasa Rao, learned Counsel for the appellant has contendedthat the tractor and trailor was used for non-agricultural purposes and hence, the Commissioner ought not to have imposed liability on the appellant. I am not inclined to jagree with the said contention. The Commissioner has construed that carrying of 'moram' falls under the category 'agriculture purpose' because it is incidental to agricultural operations and loading and unloading for that purpose also falls under the agricultural operations. Though it may not be directly connected, but incidentally the same can be used. The Commissioner accordingly on evidence found that the tractor and trailor was used for agricultural purpose and that the policy is comprehensive policy under which the Insurance Company received premium of Rs.2,820/- which includes additional premium for hire or reward. Learned Counsel for the appellant secondly contended that the award of the Commissioner is not in accordance with the law since the Commissioner has determined the compensation in the absence of any loss of earning capacity assessed by the Medical Officer as per the provisions of the Act in respect of non scheduled injury.
6. To appreciate his contentions it is necessary to know the nature of work the injured were performing and tlic injuries the applicants-respondents suffered. Respondent-applicant in CM A No. 1086 of 1995 has received fracture to right leg, fracture to right side shoulder and injuries to other parts of the body and has got 60% permanent partial disability. Respondent-applicant in CMA No.1087 of 1995 has received multiple injuries on chest and had and got 50% permanent partial disability of chest movement and there are restricted movements of chest and attacks of headache and giddiness. The applicants-respondents were doing cooli work and by virtue of injuries it incapacitated the injured-applicants to perform their work. In Pratap Narain Singh Dec v. Shrinivas Sabala, AIR 1976 SC 141, the Apex Court held that incapacity to earn lias to be determined with reference to the work the workman was doing at the time of the accident. The decision reported in Sadashiv Krishna Adke v. Time Traders, : (1992)ILLJ877Bom , relates to a case of a workman working as a cooli and the Court considering the nature of injuries the cooli suffered found that the worker become unfit to do the work of cooli and therefore incapacity was to be taken as 100%. While deciding that issue the Bombay High Court has followed the judgment of the Apex Court in Pratap Narain Singh Deo 's case (supra).
7. On the other hand Sri Mahender Reddy, learned Counsel for the respondents has contended that this appeals are not maitainable in view of Section 30 of the Act, particularly in view of 3rd proviso to Section 30(1) of the Act which reads as under:
'Provided further that no appeal by an employer under clause (a) shall lie unless the memorandum of appeal is accompanied by a certificate by the Commissioner to the effect that the appellant has deposited with him theamount payable under the order appealed against.'
He has also drawn my attention to the, judgment of this Court reported in G. Venkateswara Rao v. Divisional Manager, New India Assurance Company, : 1998(2)ALD9 , wherein the Division Bench of this Court had an occasion to examine the 3rd proviso to Section 30(1) of the Act. The Division Bench has held as follows:
'.....memorandum of appeal has to beaccompanied by a certificate of the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against. In the absence of such a certificate, which we hold is required by the 3rd proviso to Section 30(1) of the Act, the appeal under the clause (a) preferred by the insurer does not lie and is liable to be rejected on that ground.'
While taking that view the DivisionBench has considered the judgment reported in Gokak Mills v. Commissioner For Workmen's Compensation, : ILR1994KAR1982 , wherein the Division Bench of the Karnataka High Court has observed as follows:
'So far as the present provision it concerned, it has to be kept in view that the Workmen's Compensation Act is a beneficial legislation. The dependants of the workman who suffers fatal injury or the workman who gets a grave physical injury in the course of employment are entitled to go to the Commissioner for Workmen's Compensation for claiming adequate and proper amount of compensation as laid down by the schedule to the Act. Under these circumstances, once the Commissioner adjudicates and awards compensation payable by the employer, if the latter's right to appeal is made subject to thefetter of depositing of the amount, it cannot be said that the right of appeal has become illusory or arbitrary. It is now well settled that the appeal is the creation of statute and it is open to the Legislature to give a fettered right of appeal or unfettered right of appeal as the legislative policy requires in tlie given set of circumstances for catering which the statute is enacted.'
The Supreme Court in A.A. Haja Mumuddin v. Indian Railways, : AIR1993SC361 , in'Para No.5 of its judgment has held as follows:
'A view which advances cause of justice must be preferred to the one which defeats it. When an indigent person approaches tlie Tribunal for compensation for the wrong done to him, the Tribunal cannot refuse to exercise jurisdiction merely because he does not have the means to pay the fee. The ends of justice require that the Tribunal should follow the procedure laid down in Order 33 of the Code to do justice.
Thus, following the ruling of the Supreme Court in the above case, to construct the proviso 3 to Section 30(1) of the Act, we should not confine to the literal meaning of the Act, but, on the other hand, we must hold, having regard to the object of the proviso and the fact that the insurer could be adjudged as if a judgment debtor under the decree, that in a case where an appeal is filed by tlie insurer challenging the judgment and award of compensation in favour of the workman, it cannot be entertained unless it is accompanied by a certificate by the Commissioner to the effect that the appellant lias deposited with him the amount payable under the order appealed against, or otherwise, the very object of the proviso would be defeated.'
The Division Bench of the Bombay High Court in its decision reported in G.R. Sanev. D.S. Sonavane and Company, AIR 1946 Bom. 110, has held as follows:
'The deposit as well as the certificate evidencing the deposit is a condition precedent. This condition seems to be incorporated to give relief to dependents of persons who are in humble station of life and the compensation should be quickly available to supply their needs.'
Similar view was echoed by the Calcutta High Court in B.P. Nandy v. General Manager, East India Railway, : AIR1954Cal453 . A Division Bench of the Orissa High Court in Koili Bewa v. Akshaya K. Mishara, : (1994)IILLJ71Ori , has agreed with the view taken by the Kerala High Court in New India Assurance Company v. M. Jayarama Naik, 1982 ACJ 3, wherein the question arose whether 3rd proviso was attracted to an insurer preferring an appeal. A Division Bench of the Kerala High Court in New India Assurance Company's case (supra) lias held as follows:
'We are not in this case concerned with the question as to whether, the insurer can, because the liability of the insured is statutorily passed on to the insurer, defend the proceedings before the Commissioner. Tribunal or Court as the case may be, by advancing such grounds as are available to the insured and whether the Insurance Company can on such grounds available to the insured employer prefer an appeal against the award of compensation. Without deciding that question, we will assume, that it is possible. But then the insurer is only steppiiig into the shoes of he insured, the employer, and the defence is not qua insurer but in the name of the insured and in his place. An appeal preferred on such grounds, if successful, will jeopardise the employee's right to recover the compensation from tlie employer also. What the insurer seeks in such an appealis that the insured may be found to be not liable to pay the compensation, and consequently, the insurer also may be held to be not liable. The primary relief sought for is the first mentioned relief and the other relief is consequent to the grant of that relief. Hence, such an appeal is preferred by the insurer for and on behalf of the employer and in his stead, though the aim of the insurer is to exonerate his own liability. What the insured cannot do by himself viz., filing of an appeal without complying with the requirements of the third 'proviso to Section 30 of the Act, cannot be done by another on his behalf. So the third proviso to Section 30 of the Act governs such appeals.'
The Orissa High Court in Koili Bewa 's case (supra) has observed as follows:
'...the appeal though filed by the insurer, has to be taken in reality as on behalf of the insured, i.e., the employer. The intention behind the proviso is not to put the right of the claimant following the order of the Commissioner in jeopardy. We are of the view that the insurer has also to deposit the amount while preferring the appeal. We have taken this view also because, on deposit being made, in appropriate cases the Court may order for withdrawal of the deposited amount by the claimants) to take care of hardship, which would to be possible if the appellant were not to deposit the amount.'
Considering above all the cases the Division Bench G. Venkateswara Rao 's case (supra) has held as follows:
'.....when the insurer prefers anappeal under Section 30(1)(a) of the Act, the memorandum of appeal has to be accompanied by a certificate of the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealedagainst. In the absence of such a certificate, which we hold is required by the 3rd proviso to Section 30(1) of the Act, the appeal under clause (a) preferred by the insurer does not lie and is liable to be rejected on lhat ground.'
8. In the circumstances, following the above judgment of the Division Bench of this Court in G. Venkateswara Rao's case (supra), I hold that the appellant-Insurance Company has not complied with the mandatory requirement of the 3rd proviso to Section 30(1) of the Act. Both the appeals are, therefore, dismissed. No costs.