D.P. Mohapatra, J.
1. National Insurance Co. Ltd., represented through its Senior Divisional Manager, Cuttack, filed this appeal under Section 30 of the Workmen's Compensation Act, 1923 (hereinafter referred to as 'the Act') challenging the order passed by the Commissioner for Workmen's Compensation and Deputy Labour Commissioner, Cuttack Division, in W.C. Case No. 43-D of 1987, directing it to pay Rs. 96,211.50 to the respondent No. 1 towards compensation. The respondent No. 2 is the owner of the ill-fated vehicle, truck No. OSU 543.
The aforementioned case was registered on the application filed by the respondent No. 1 claiming a sum of Rs. 1,25,000/- as compensation from the appellant and the respondent No. 2. The case of the applicant, shortly stated, was that on 24.3.1987 while he was going in the truck No. OSU 543 as a helper from Ramgarh to Baripada, the truck dashed against a roadside tree and overturned and the left leg of the applicant was crushed resulting in compound fractures. The left leg of the applicant was amputated in the Rajendra Medical College Hospital, Ranchi, in which he underwent medical treatment after the accident. It was the further case of the applicant that as a full-time worker he was getting Rs. 850/- per month towards wages plus Rs. 150/- per month as overtime allowance. The claim of compensation was made against the owner of the vehicle as well as its insurer.
2. The owner of the vehicle, respondent No. 2, in his written statement fully supported the case of the applicant. He admitted that his vehicle met with the accident, admitted existence of relationship of master and servant between himself and the applicant and that the left leg of the applicant had been amputated. He did not dispute the payment of monthly wage to the applicant as claimed by the applicant. He stated that the vehicle had been validly insured with the appellant Insurance Company on the date of accident.
3. The appellant Insurance Company in its written statement generally denied all the allegations in the application for compensation. It did not readily admit that the vehicle was insured with it and called upon the claimant-applicant to furnish full particulars of the insurance policy.
4. Two witnesses including the applicant himself were examined in support of his case. The owner examined himself as a witness. No evidence was produced by the Insurance Company.
5. The Commissioner on assessing the evidence on record under different issues framed by him held that the applicant is a workman within the meaning of the Act; that the accident arose out of and in course of employment of the applicant as the helper of the truck No. OSU 543 and that the applicant is cent per cent disabled due to the amputation of his leg from ankle level. The Commissioner further held that the applicant was 18 years old at the time of accident and he was getting monthly wage of Rs. 850/-. Calculating the amount of compensation according to the provisions in Section 4(1)(b) read with Schedule IV of the Act he determined the amount at Rs. 96,211.50. Considering the plea of the owner of the vehicle who is primarily liable to pay the compensation for indemnification by the Insurance Company, the Commissioner held that the vehicle in question had valid insurance coverage with the appellant company covering the risk of the insured workman and as such the company is liable to indemnify the owner for the compensation money. The Commissioner, therefore, allowed the application of the applicant in part and directed the appellant Insurance Company to deposit the sum of Rs. 96,211.50 instantly for disbursement to the applicant with the further direction that in case of default, penalty to the extent of 50 per cent of the compensation amount together with interest will be charged from the Insurance Company.
6. The main thrust of the arguments of Mr. A.K. Choudhury, learned Counsel for the appellant, was that the Commissioner erred in law in holding that the applicant suffered total disablement on account of amputation of his left leg below the ankle portion and, therefore, his assessment of compensation on that basis is unsustainable. According to Mr. Choudhury, the disablement suffered by the applicant should have been taken as 50 per cent.
The learned Counsel appearing for the respondents while supporting the decision of the Commissioner challenged the maintainability of the appeal on the ground of noncompliance with the provisions in the third proviso to Section 30(1) of the Act. He also contended that the appeal is not maintainable since no substantial question of law is involved in it as required under the first proviso to Section 30(1).
7. Taking up the question of maintainability first, it will be convenient to quote the first and third provisos to Sub-section (1) of Section 30 of the Act.
First proviso:
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.
Third Proviso:
Provided further that no appeal by an employer under Clause (a) shall lie unless that 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.
While the third proviso requires a certificate by the Commissioner regarding deposit of the amount payable under the impugned order to accompany the memorandum of appeal at the time of its presentation, the first proviso relates to the points involved in the appeal, in other words, whether any substantial question of law is involved in the appeal. As noted earlier, the contention of the respondents is that presentation of the appeal was not in order since the memorandum of appeal was not accompanied by requisite certificate of the Commissioner. To meet this point, Mr. Choudhury contended that the third proviso has application only to an appeal by an employer and not by an insurer. He relies on the language of the statutory provision in support of his contention. The third proviso to the section, no doubt, expressly refers to an appeal by an employer, but there is no specific provision in the statute enabling the insurer to challenge the order of the Commissioner in appeal. It has been held in several decisions that since the insurer is to indemnify the employer for the compensation and it is saddled with liability for payment of the compensation ordered by the Commissioner, it is a person aggrieved by the said order and can maintain an appeal against such order under Section 30 of the Act. [See New India Assurance Co. Ltd. v. Sankar Behera 1988 ACJ 337 (Orissa)]. In essence the insurer steps into the shoes of the insured while filing the appeal against the order of the Commissioner. This position does not change in a case in which the employer supports the case of the applicant workman.
A Division Bench of the Kerala High Court in the case of New India Assurance Co. Ltd. v. M. Jayarama Naik 1982 ACJ 3 (Kerala) considering the provisions of Section 30 of the Act and Section 96 of the Motor Vehicles Act, 1939, held that 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 and so the third proviso to Section 30 of the Act governs appeals by insurer also.
Reading Section 30, particularly its third proviso, the principle appears to be that if the appeal be such that by it the workman's right to the compensation awarded to him is placed in jeopardy, security for the workman must be provided for by the deposit of the amount of compensation and such a deposit would be essential to the maintainability of the appeal, if, on the other hand, the workman's right to the compensation awarded does not come into question in the appeal at all, there is no risk to the workman's getting the compensation awarded to him and there is thus no necessity for requiring anyone preferring such an appeal to deposit the compensation amount. Tested in the light of the said principle, there can be no scope for doubt that the present appeal which concededly comes within Section 30(1)(a) put the right of the workman to receive the compensation ordered by the Commissioner in jeopardy. It is, therefore, my considered view that the third proviso to Section 30 is applicable to such an appeal and if the provision therein is not satisfied the memorandum of appeal cannot be said to have been properly presented and the appeal cannot be said to have been duly instituted.
8. The second ground on which the maintainability of the appeal was challenged by the respondents was that it involves no substantial question of law. As noted earlier, the main contention raised on behalf of the appellant Insurance Company was that the finding of the Commissioner that the applicant suffered total disablement on account of amputation of a portion of his left leg (below ankle) was erroneous. Section 2(1) of the Act defines 'total disablement' as follows:
'total disablement' means such disablement, whether of a temporary or permanent nature, as incapacitates a workman for all work which he was capable of performing at the time of the accident resulting in such disablement:
Provided that permanent total disablement shall be deemed to result from the permanent total loss of the sight of both eyes or from any combination of injuries specified in Schedule I where the aggregate percentage of the loss of earning capacity, as specified in that Schedule against those injuries, amounts to one hundred per cent:
Provided that permanent total disablement shall be deemed to result from every injury specified in Part I or Schedule I or from any combination of injuries specified in Part II thereof where the aggregate percentage of the loss of earning capacity, as specified in the said Part II against those injuries, amounts to one hundred per cent, or more.
The Supreme Court in the case of Pratap Narain Singh Deo v. Shrinivas Sabata 1976 ACJ 141 (SC) construing the expression 'total disablement' as defined in Section 2(1)(1) of the Act held that if the injury makes the workman unfit for the work which he was discharging prior to the accident, the disablement is total and not partial. In that case a carpenter while doing work in course of employment fell down and sustained injuries as a result of which his left arm above elbow was amputated and he became unfit for the work of carpenter. In such circumstances the Court held that the disablement was total and not partial as the work of carpentry cannot be done by one hand only. Whether the injury suffered by the workman makes him unfit for work he was doing prior to the accident is essentially a question of fact. It does not involve any question of law, far less a substantial question of law.
This Court in the case of Managing Director, O.R.T. Co. Ltd. v. S. Rama Mohan Rao 1988 ACJ 184 (Orissa), held that a workman having sustained fracture of right wrist is totally disabled or not is a question of fact.
Alternatively considering the contention on its merit, it is common knowledge that helper in a truck is required to do various types of manual works like washing and cleaning the vehicle, changing a punctured tyre as and when necessary and helping in loading and unloading of goods. Such types of works cannot be handled by a person whose leg has been amputated and who is not able to walk without support. There is, therefore, no infirmity in the finding of the Commissioner that the applicant workman has suffered total disablement due to the accident. It is thus clear that the appeal is not maintainable since it does not satisfy the requirement of the first proviso to Sub-section (1) of Section 30.
9. Despite the challenge to the maintainability of the appeal, I have perused the statements of the witnesses examined in the case in order to satisfy myself that there has been no serious error or infirmity in appreciation of the evidence by the Commissioner. As noted earlier, the employer fully supported the case of the applicant workman and deposed in that line. The workman and his witnesses stated in support of the case of the former. Nothing was elicited in the cross-examination by the insurer to shake the credibility of their evidence or to render their version improbable and unacceptable. No evidence was led on behalf of the insurer. Therefore, there was ample justification for the Commissioner to record the finding as noted earlier and there is no illegality or infirmity in the order. The quantification of the compensation is in accord with the provision in Section 4 read with Schedule IV of the Act.
10. On the discussions in the foregoing paras, the appeal fails on the ground of maintainability as well as being devoid of merit. It is, therefore, dismissed. There will, however, be no order for costs of this appeal.