The United India Insurance Company Ltd. Vs. M. Mangamma and ors. - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory 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]. - santosh was a workman under workmen's compensation act and he died in a motor vehicle accident out of and in course of his employment is held to be well founded. however, interest at the rate of 12 per cent per annum imposed on the appellant by the learned commissioner from the date of accident on his failure to deposit the same within 30 days of impugned judgment is waived out.m. papanna, j. 1. in this appeal under section 30 of the workmen's compensation act by united india insurance company ltd., bhubaneswar, judgment of commissioner for workmen's compensation and joint labour commissioner, jeypore (for short 'the commissioner') in w.c. case no. 30 of 1997 awarding a sum of rs.1,32,822/~ towards compensation in favour of claimants is called in question.2. claimants who are respondents 1 and 2 herein made application to the learned commissioner claiming compensation on account of death of deceased m. santosh who died in motor vehicle accident while working as helper in the truck bearing registration no. or-10-5391 owned by respondent no. 3 herein.3. on consideration of evidence on record, learned commissioner adjudicated the claim application and passed the award as aforesaid.4. appearing for appellant, learned counsel shri a. k. mohanty has contended that appellant is not liable to indemnify the owner of offending vehicle (respondent no. 3) particularly when the vehicle was not driven by a duly licenced driver. the deceased driver had no valid and effective driving licence at the material time. that apart learned commissioner has gone wrong for imposing penal interest at the rate of 12 per cent per annum on the awarded amount from the date of accident in default of depositing the compensation amount within 30 days of impugned judgment. moreover, there is no documentary evidence to show that deceased m. santosh was engaged as a helper in the truck in question at the material time.5. on the other hand, appearing for respondents 1 and 2 their counsel shri s, k. mund has refuted the aforesaid contentions raised on behalf of the appellant. his contention principally is that the appeal under section 30 of the workmen's compensation act against impugned judgment is not maintainable particularly when substantial questions of law have not formulated in the grounds of appeal. moreover, it is open to the insurance company to proceed against the insured tq recover the compensation amount paid to the claimants. on these grounds urged by him, he persuaded the court to dismiss the appeal.6. judgment impugned before this court along with evidence on record is gone through. evidence of p.ws. 1 and 2 examined for claimants indicates that deceased s. rama rao, driver of offending truck owned by respondent no. 3 and m. santosh, helper of the truck died in the accident. this fact has not been disputed by owner of the offending vehicle. however, denying its liability the insurance company, the present appellant herein, filed written statement. but no evidence as such has been adduced either by insurer or insured. thus, finding of learned commissioner that the deceased m. santosh was a workman under workmen's compensation act and he died in a motor vehicle accident out of and in course of his employment is held to be well founded. that being so, question of interference of this court with the said finding does not arise.7. learned commissioner, on evidence of mother of deceased m. santosh supported by post mortem report came to hold that his age at the material time was 22 years and his wage per month was rs. 1500/- as perversion of his mother (p.w. 2). no evidence as such was adduced for and on behalf of the appellant to controvert the above fact. as such i am not inclined to interfere with the finding of the learned commissioner on this score.8. learned commissioner basing on age and wage of deceased m. santosh fixed compensation at rs.1,32,822/-. he further directed the insurer to deposit amount of compensation within 30 days from the date of his judgment failing which the insurer shall be liable to pay interest at the rate of 12 per cent per annum from the date of accident.9. regard being had to materials discussed above, i am of considered view that the impugned judgment does not suffer from any infirmity. the learned commissioner has not committed any illegality in awarding rs.1,32,822/- towards compensation in favour of claimants on account of death of earning member of their family. therefore, i am not inclined to interfere with the judgment impugned before this court.10. the result is, appeal being devoid of any merit is hereby dismissed, but without cost. however, interest at the rate of 12 per cent per annum imposed on the appellant by the learned commissioner from the date of accident on his failure to deposit the same within 30 days of impugned judgment is waived out.11. since the entire awarded amount has been deposited with the learned commissioner, he shall disburse the amount to the claimants with accrued interest within a month on proper identification.