Pasayat, J.
In this appeal under the Letters Patent purport of the word 'lie' appearing in the third proviso to Sub-section (1) of Section 30 of the Workmen's Compensation Act, 1923 (in short 'the Act') is the pivotal question for consideration, in addition to other questions which shall be dealt with infra. The Oriental Insurance Company Limited (hereinafter referred to as 'the Insurer') calls in question legality of judgment of a learned Single Judge holding that the Miscellaneous Appeal preferred under Section 30 of the Act was defective and consequentially was not maintainable, as the memorandum of appeal was not accompanied by a certificate by the Commissioner to the effect that appellant had deposited with him the amount payable nder the order appealed against. That was the interpretation given to the expression 'lie' appearing in third proviso to Sub-section (1) of Section 30 of the Act. The quantum awarded by the Commissioner as compensation to Gajendra Prusty (hereinafter referred to as 'the workman') was under-challenge.
2. Learned counsel for the insurer submitted that a narrow meaning cannot be given to the expression 'lie' and the interpretation put on the said word does not bring out the true import of the expression. It is also submitted that the loss of earning capacity which is the sine qua non for fixation of compensation, has not been assessed as required under the statute, and therefore, the quantum as awarded by the Commissioner is not reasonable.
3. Sri S. Roy, learned counsel appearing for the workman on the other hand submitted that three decisions of this Court have put the dispute beyond shadow of doubt that if the memorandum of appeal is not accompanied by the requisite certificate, the appeal has to be summarily dismissed. Reliance is placed for this purpose on the decisions of this Court in Central Engineering Corporation v. Dorai Raj : 1988 65 ACJ 19 and Managing Director, Orissa State Road Transport Corporation and Anr. v. Surendra Kumar Mohapatra 1987 ACJ 480. So far as quantum is concerned, it is submitted that enough materials were brought on record before the Commissioner on careful consideration and analysis of which he has fixed the quantum and no interference has rightly been made by the learned Single Judge.
4. Since the core question relates to consequence of non accompaniment of this certificate by the Commissioner to the memorandum of appeal, as required in the provision referred to above, it is necessary to quote the provision.
'30. Appeals-(1) An appeal shall lie to the High Court from the following orders of aCommissioner, namely-
(a) an order awarding as compensation a lump sum whether by way of redemption of a half-monthly payment or otherwise or disallowing a claim in full or in part for a lump sum;
(a-a) an order awarding interest or penalty under Section 4A:
(b) an order refusing to allow redemption of a half monthly payment;
(c) an order providing for the distribution of compensation among the dependants of a deceased workman, or disallowing any claim of a person alleging himself to be such dependant.
(d) an order allowing or disallowing any claim for the amount of an indemnity under the provisions of Sub-section (2) of Section 12; or
(e) an order refusing to register a memorandum of agreement or registering the same or providing for the same subject to conditions provided that no appeal shall lie against any order unless a substantial question of law is involved in the appeal and; in the case of an order other than an order such as is referred to in Clause (b), unless the amount in dispute in the appeal is not less than three hundred rupees;
Provided further that no appeal shall lie in any case in which the parties have agreed to abide by the decision of the Commissioner, or in which the order of the Commissioner gives effect to an agreement come to by the parties:
Provided further that no appeal by an employer under Clause (e) 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 the amount payable under the order appealed against.
5. It is to be noticed that the expression 'lie' has been used at four places i.e. in the main provision itself and in all the three provisos. The sense in which the expression has been used appears to have been properly indicated in the Webster Universal Dictionary, to mean 'to be admissible', 'capable of being sustained'. The illustration given is 'the appeal doed not lie'. As indicated in Aiyar's Judicial Dictionary (Eleventh Edition) an action is said to 'lie' when it is 'legally maintainable'. In Durton's Legal Thesaurus, the verb 'lie' is defined to mean 'be sustainable, be allowable, be appropriate, be available, be established, be evident, be fitting, be permissible, be permitted, be possible, be proper, be suitable, be suited, be supportable, be Warranted, exist, extend, stand.'
It has to be noted that Sub-section (1) of Section 30 provides forum of appeal to be the High Court. It provides that an appeal shall 'lie' to the High Court from any of the six categories of orders enumerated. The first proviso to Section 30(1) states that no appeal shall lie against any order unless it involves substantial question of law: the second proviso states that no appeal shall He in respect of an award passed on an agreement; and the third proviso states that no appeal shall lie unless the Memorandum of Appeal is accompanied by deposit certificate. In the Code of Civil Procedure, 1908 (in short' CPC') Section 96(4) provides that no appeal shall lie except on a question of law'. Similarly in Section 100, CPC relating to second appeals, it is provided that an appeal shall lie in the High Court from any decree passed by any Court subordinate to the High Court, if the High Court is satisfied that the case involved substantial question of law. The question therefore, arises as to at what stage the existence of question of law as required under Section 96(4) and the substantial question of law as required under Section 100 is to be considered. Such consideration is certainly not at the stage when the memorandum of appeal is presented, but at the stage when the Court decides to entertain or admit an appeal. It is only when an appeal involves a substantial question of law or is not against an agreed order, the question will arise for consideration only at that stage whether the appeal under Section 30 of the Act is to be entertained for consideration. What would control the expression 'lie' in the third proviso is not presentation of the Memorandum of Appeal, but at the stage of consideration regarding entertainability of the appeal. The expressions 'Appeal' and 'Memorandum of Appeal' are contextually different. It is to be noted that even under Order 41 of the CPC the expression 'Appeal' and Memorandum of Appeal' are used to denote two distinct things. The word 'Appeal' is defined as the judicial examination of the decision by a higher Court of the decision of an inferior Court. (See. Wharton's Law Lexicon). Appeal is judicial examination ; the Memorandum of a Appeal Contains the grounds on which the judicial examination is invited.
6. While considering the question as to whether an appeal can be entertained unless it is accompanied by satisfactory proof of the payment of tax admitted to be due, the Apex Court held that the word 'entertain' means to deal with or admit for consideration. Examining the question as to at what stage, the appeal can be said to be entertained for the purpose of application of the Provision which was under consideration in Lakshmi Ratan Engineering Works Ltd v. Asst. Commissioner Judicial: AIR 1968 SC 488, it was observed that the appeal can be said to be entertained when it is admitted for consideration. It was further observed that when the proviso speaks of entertainment of appeal, it means that the appeal such as was filed will not be admitted to consideration unless there is satisfactory proof available of making deposit of admitted tax. In the said case, provision under consideration mandated production of proof of payment of admitted tax before appeal could be entertained. Making an 'Appeal' equivalent to 'Memorandum of Appeal' is not sound. The expression 'lie' cannot be given a narrow meaning to mean presented for the purpose of receiving or presenting, but should mean 'to be entertained'.
Any other interpretation would be unconscionable. It cannot be said that for the purpose of Sub-section (1) itself 'lie' shall mean 'to entertain', while giving a different colour to the expression for the purpose of third proviso. As indicated above, the first proviso would require an examination of the question whether substantial question of law is involved and the second proviso deals with the question whether the parties had agreed to abide by the decision of the Commissioner. Same expression appearing at different places of a provision cannot be given different meaning As observed by the Apex Court in Tahasildar Singh v. State of U. P. : AIR 1959 SC 1012, the cardinal rule of construction is that a section or enactment must be construed as a whole, each portion throwing light if need be on the rest. Words to similar effect have been used by Lord Wright in Janminus v. Kelly (1956) All. ER 855. Apex Court referred to the said decision in Tahasildar Singh's case (supra). The position has been succinetly stated in Maxwell's interpretation of Statutes (10th Edition at page 162). The view was reiterated by the Apex Court in Krishna Prasad Gupta v. Controller. Printing and Stationery: 1996 SCC (1 and 5) 264. The inevitable conclusion is an appeal can be presented unaccompanied by requisite certificate, but it shall not be taken up for consideration unless the certificate is filed. The Court cannot take up the appeal for consideration unless the prerequisite of deposit of amount of the disputed award is fulfilled. Similar view was taken by Kamataka High Court in Oriental Insurance Co. Ltd. v. Dharma Gowda alias Dharma : 1994 ACJ 1007. The learned Single Judge who have taken contrary view do not appear to have considered the matter in its proper perspective. Decision in Central Engineering Corporation's case (supra) and in Managing-Director, Orissa State Road Transport Corporation and another's case (supra) taking contrary view are overruled. Undisputedly the appellant insurer had deposited the amount and filed the certificate though subsequent to the date of presentation of the memorandum of appeal in the miscellaneous appeal. The appeal was to be examined on merits.
7. We find the learned Single Judge while holding the appeal was defective and not entertainable, has gone into merit, holding that no substantial question of law was involved. It is to be noted that loss of earning capacity is the sine qua non for grant of compensation. The mode of assessment of loss of earning capacity and the person competent to assess it, have been provided in Section 4 of the Act. The Commissioner has taken the loss of earning capacity to be 83% and has accordingly worked out the compensation at Rs 91,494/. There is a finding of fact that the claimant was getting Rs. 1000/- as monthly wages and was 20 years of age at the time of accident. The doctor who had claimed to have examined the claimant spoke about percentage of physical disability, but did not breathe a word about loss of earning capacity. They are contextually different. Section 4(1)(c)(ii) of the Act and Explanation II. thereto leave no manner of doubt that while judging the loss of earning capacity, the basis of assessment done by a qualified medical practitioner plays a vital role, who is a 'qualified medical practitioner' has been defined in Section 2(1)(i). Legislature in its wisdom has modified the particular procedure which has to be strictly followed by the Commissioner in assessing the loss of earning capacity. The degree of disability and loss of earning capacity are not synonymous. It Is however, true that Percentage of physical disability may have a vital role while the medical practitioner has to assess the loss of earning capacity. There must be a basis for it. but not mere guess work. Loss of earning capacity has to be assessed on sound principles of medical science. They cannot be merely hypothetical and mere guess work without any nexus with the actual objective sought to be achieved, An injured person is entitled to receive compensationwhich should be just, fair and proper and it should not be a wind-fall or profitable. It is unfortunate that without keeping in mind methodology to be adopted while assessing loss of earning capacity, orders are being passed which have no foundation to support them. Explanation II to Section 4(1)(c)(ii) of the Act requires that while doing assessment of loss of earning capacity, the qualified medical practitioner shall have due regard to the loss of earning capacity in relation to different injuries specified in Schedule I. While an injured person is entitled to receive compensation and that too within a reasonable period of time, this process is not to be used as an exploitative channel or for the share of wind-fall gains. Similar view has been expressed by the Karnataka High Court in Oriental Insurance Co. Ltd. v. Tajuddin Abdul Rahim and Anr., (1996) 88 FJR 33. A case may arise when the Commissioner may feel that the evidence of the qualified medical practitioner is not adequate, sufficient and proper. In such cases nothing prevents him from bringing on record, the evidence of another expert. He should keep in mind the objective of the enactment of the Act. Since the Commissioner has not kept in view the requirement of law, in ordinary course, we would have remitted the matter back again or fresh consideration. It was, however, suggested by the learned counsel for the parties that we should take note of the facts already on record and make a fair assessment of the compensation, in view of long passage of time of about 6 years from the date of accident.
8. Considering the job which was being undertaken by the workman at the time of accident the period of hospitalisation, nature of injuries, percentage of loss of earning capacity can be fixed at 60%. Worked out on that basis, the entitlement of the workman comes to Rs. 64,584/-
9. The appeal is allowed to the extent indicated above. Out of the amount payable to the claimant, Rs. 50,000/- be kept in a fixed deposit in a nationalised Bank for five years and the balance be released in his favour. No withdrawal shall be allowed against the deposit. However, on being moved, the Commissioner may permit withdrawal of such amount as shall be necessary to meet any pressing need, on being satisfied about the need. The amount in excess of the amount payable to the workman be returned to the insurer.
D. Mishra , J.
I agree.