Balabhadra Patra and ors. Vs. Chief Engineer and ors.

.....deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - the principle applicable to civil suits would not be attracted to benevolent statute like the act......preferred the finding regarding the death of the workman in course of employment, his monthly wage, the right of the claimants to compensation and the liability of the employer-respondent to the extent awarded has become final. accordingly, the facts out of which the claim arose are not necessary to be stated.3. on the death of the workman, the claimants filed an application in the prescribed form-g, wherein serial no. 6, it was stated as follows:'the applicants are accordingly entitled to receive lump sum payment of rs. 7,000/-.'the commissioner held that the claimants are entitled to rs. 13,500/- but the claim being for rs. 7,000/- only the higher amount to which the claimants are entitled is not to be awarded. he confined the award to rs. 7,000/- only. this part of the order is assailed in this appeal. it is not disputed that the claimants are entitled to rs. 13,500/-as determined by the commissioner.4 the short question, therefore, to be decided is:-'whether the claimant has a right to receive the compensation at the rate prescribed in the schedule to the act when he has claimed a lesser amount ?'5. the act provides in section 4 that the amount of compensation shall be as provided in the schedule. the act is a benevolent statute to give benefit to the workmen. the construction of the statute shall be such that it does not act to the prejudice of the persons to be benefited. therefore, the mandatory word 'shall' have its full effect and no discretion is left to the commissioner to reduce the same while giving the award on the basis of the claim. the principle of waiver or acquiescence has no application to such cases.6. mention of rs. 7,000/- in serial no. 6 of the application in form 'g' is also not a reduced claim. the word 'accordingly' indicates that it is only an inference with reference to the other facts mentioned. when on the facts found or stated, the inference becomes wrong, the facts mentioned shall prevail and not the inference deduced.....