New India Assurance Co. Ltd. Vs. Manorama Sahu and anr. - 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]. - 12. in a benevolent legislation like the act, it is the duty of the tribunal or court to make arrangement for protection of the claimants for their benefit. 3,192/-.on being satisfied that the amount of rs.s.c. mohapatra, j. 1. insurer is the appellant in this appeal under section 30 of the workmen's compensation act, 1923 (hereinafter referred to as ' the act').2. when notice of the appeal in limitation matter was sent to the claiment-respondent, she entered appearance and filed an application to direct the appellant to deposit the awarded amount and to permit her to withdraw the same. in order that the appeal can be finally disposed of if the records of the claim proceeding are called for, direction was issued to that effect and records have been received. with consent of learned counsel for the claimant and learned counsel for the insurer, question of limitation of the appeal, deposit of the amount payable by appellant and merit of the appeal were heard. it is agreed that in case delay is condoned and appeal is held to be entertainable without deposit as required under section 30(1), third proviso of the act, appeal can be admitted and heard on merits without notice to the owner respondent.3. section 3(a) third proviso of the act provides that the employer preferring appeal against his liability under section 30(1)(a) of the act is to file the certificate of the commissioner evidencing deposit of the awarded compensation along with the memorandum of appeal. this being a mandatory pre-condition creating impediment on the right of appeal vested in an employer, there would be no scope for consideration of question of condonation of delay in presenting the appeal where such certificate does not accompany the memorandum of appeal. question of condonation of delay can be considered only after the certificate is filed.4. admittedly, insurer has not deposited the amount and has not filed the certificate of the commissioner along with the memorandum of appeal. mr. p. roy, learned counsel for the appellant, submitted that under the scheme of the act, insurer is not the employer and accordingly where insurer prefers an appeal under section 30(1) of the act, certificate is not required to accompany the memorandum of appeal as required under the third proviso. mr. roy relied upon the observation in the decision of this court reported in 65 (1988) c.l.t. (new india assurance company limited v. sankar behera and ors.) where considering the question of maintainability of an appeal it was observed:'at this stage it is worth mentioning that the third proviso under section 30(1) requires the employer to deposit the amount. it does not require the insurer to deposit any amount.'since insurer appellant in that case had deposited the amount, further discussion on the question was considered to be of academic interest.5. in the reported decision, maintainability of appeal by the insurer was the question to be considered. appeal being a vested right and in view of the language of section 30(1) of the act that any person aggrieved can prefer an appeal,it was observed that insurer is a person aggrieved since it was made liable to pay the compensation and hence right of appeal is vested on the insurer. in that context, scheme of the act was also considered.6. employer is liable under section 3 of the act. a contractor being the principal employer under section 12 of the act was also made liable. although liability of an insurer is limited under section 14 of the act, so far as workman in a motor vehicle in concerned, insurer was made liable by judicial precedent in the decisions reported in 1982-i-llj-73 (bibhuti bhusan muknerjee v. srimati dinamani dei and ors. and 60 (1985) c.l.t. 257 (the oriental fire and general insurance co. ltd. v. mafias burla and ors.). when in the act the terms 'employer', 'principal employer' and 'insurer' have been used, each term has a separate meaning. principal employer is also employer under section 3 of the act and is to comply with the precondition under section 30(1) third proviso. insurer is thus not an employer. he only covers the risk of the employer under a contract. because of the mandatory provision under the motor vehicle act, he is liable. thus, insurer not being an employer is not required to comply with section 30(1) third proviso of the act.7. this question can be viewed from another angle. right of appeal is a vested right. where an impediment is intended to be created in respect of such vested right, legislature is required to express the same expressly. unlessthere is express language or clear intendment of the legislature, courts do not favour impediment being created to arrest exercise of a vested right of appeal. procedural change is considered in a different light. hence, an interpretation ofthird proviso that insurer would come within the meaning of employer would defeat thevested right of any person aggrieved to prefer an appeal and would create impediment which is to be avoided.8. mr. satapathy, learned counsel for claimant, submitted that deposit being intended to protect interest of the workman, the term 'employer' in third proviso to section 30(1) of the act should be interpreted to include insurer. if this interpretation is accepted, an impediment would be created in vested right of any person aggrieved who is not an employer. accordingly, following the decision reported in new india assurance company limited's case (supra), i am inclined to hold that insurer is not required to deposit the awarded compensation and obtain certificate to accompany the memorandum of appeal. appeal without such certificate is competent.9. stamp reporter has pointed out that there is a delay of 2 days in preferring the appeal. mr. p. roy, learned counsel for the appellant, submitted that this is on account of his mis-calculation. i am inclined to accept the submission of mr. p. roy which is a sufficient cause and hence delay is condoned and the appeal is admitted.10. widow of the driver of the passenger bus bearing registration number o.s.u. 1881 is claimant. on october 29,1989, the vehicle from narasinghnath to puri met with an accident as a result of which the driver, husband of the claimant, died on the spot. asserting that the deceased was aged 30 years and his monthly wage was rs. 1,400/-, widow claimed compensation.11. owner of the vehicle who is employer of deceased did not contest the salary or the age of the deceased as asserted by claimant widow. insurer also did not contest the same. in such circumstances, commissioner was justified in calculating compensation of rs. 83,192/- as per the schedule under the act finding that monthly wage was rs. 1,000/-. no question of law arises to interfere with the impugned order.12. in a benevolent legislation like the act, it is the duty of the tribunal or court to make arrangement for protection of the claimants for their benefit. in the present case, the claimant (no. 1 is a young widow aged 28 years. other three are minor daughters of deceased. there is every chance of their being deprived of the amount if the compensation amount in lump sum is paid. some provision should be made by which they can have their subsistence. accordingly, i direct that an amount of rs. 80,000/-shall be invested in a long term fixed deposit in joint name of the claimants with provision for encashment by either or survivor. monthly interest alone is to be paid to the mother guardian on behalf of all. in case of urgent necessity an application can be filed in this court for release of a portion of the amount. balance rs. 3,192/-shall be paid to the widow on behalf of the claimants in cash. insurer shall deposit two crossed bank drafts- one for an amount of rs. 80,000/- and the other for rs. 3,192/-. on being satisfied that the amount of rs. 80,000/- has been invested in a long term fixed deposit in the names of claimants, commissioner shall release the other bank draft to the widow. in no case, the bank drafts shall be handed over to any person other than the widow. commissioner, who is to take care of the welfare of workmen, should personally take steps to assist the claimants who are destitute widow and children. if the amount is not deposited by the insurer in the manner stated above within two months from today, the entire amount shall carry interest at the rate of 18 per cent per annum from the date of application till the date of deposit.13. in result, the appeal is dismissed subject to the aforesaid modification.