Allahabad High Court
National Insurance Co. Ltd. vs Chandan And Anr. on 2 May, 2003
Equivalent citations: 2003(4)AWC2961
Author: Rajes Kumar
Bench: Rajes Kumar
JUDGMENT Rajes Kumar, J.
1. This is an appeal filed under Section 30 of Workmen's Compensation Act, 1923 (hereinafter referred to as 'Act') against the order dated 4.5.2001, passed by Commissioner under the Act and Assistant Labour Commissioner, Muzaffarnagar in W.C.A. No. 38 of 2000, Chandan v. Ganga Kissan Sahkari Chini Mills Ltd., Muzaffarnagar.
2. By the aforesaid order, Commissioner, Workmen's Compensation Act, 1923, awarded compensation to the extent of Rs. 32,128. It has been observed that a sum of Rs. 3,000 had already been paid by the Insurance Company and balance amount of Rs. 29,128 was payable and on non-payment of amount within due date, interest @ 9% was chargeable.
3. The third proviso to Section 30 requires that no appeal by an employer under Clause (a) shall lie unless the memorandum of appeal is accompanied by a Certificate by Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against. Section 30 reads as follows :
"30. Appeals. -- (1) An appeal shall lie to the High Court from the following orders of a Commissioner, 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 ;
(aa) 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 registration of 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 (a) 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.
(2) The period of limitation for an appeal under this section shall be sixty days.
(3) The provisions of Section 5 of the Limitation Act, 1963 (36 of 1963), shall be applicable to appeals under this section."
4. I have heard Sri Arvind Kumar learned counsel for the appellant.
5. Admittedly, the certificate by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against, has not been accompanied with memorandum of appeal as required under the third proviso of Section 30. The counsel for the appellant states that the third proviso is applicable to the employer in appeal filed and not in an appeal filed by the Insurance Company.
6. In my opinion, the submission of learned counsel for the appellant is not acceptable.
7. In the case of United India Insurance Company Ltd. v. Koshimsab and Ors., 1993 ACJ 946, the Division Bench of Karnataka High Court has held that the third proviso to Section 30 of Workmen's Compensation Act is applicable to the Insurance Company and the appeal filed by the Insurance Company without the certificate, as contemplated under the third proviso was not maintainable. The Division Bench' held as follows :
"20. Referring to the construction of the word 'employer' as found in the third proviso, we are of the view that we must construct the said proviso such as to give effect to the scope and object of the Act. In other words, we must construct that proviso with a view to advancing cause of justice and not to defeat it. The Supreme Court in a recent decision in A.A. Haja Muniuddin v. Indian Railways, 1993 ACJ 235 (SCI has held in para 5 as follows :
"A view which advances cause of justice must be preferred to the one which defeats it. When an indigent person approaches the Tribunal for compensation for the wrong done to him, the Tribunal cannot refuse to exercise jurisdiction merely because he does not have the means to pay the fee. The ends of justice require that the Tribunal should follow the procedure laid down in Order XXXIII of the Code to do justice."
Thus, following the ruling of the Supreme Court in the above case, to construct the proviso 3 to Section 30(1) of the Act, we should not confine to the literal meaning of the Act, but, on the other hand, we must hold, having regard to the object of the proviso "and the fact that the insurer could be adjudged as if a judgment-debtor under the decree, that in a case where an appeal is filed by the insurer challenging the judgment and award of compensation in favour of the workman, it cannot be entertained unless it 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, or otherwise, the very object of the proviso would be defeated. In the instant case, since the insurer has not filed the certificate along with the appeal of having deposited the compensation amount awarded by the Commissioner, the appeal is not maintainable. It is not possible to accede to the contention of Mr. O. Mahesh that the Parliament intended to exempt the insurer from complying with the requirement of the third proviso to Section 30(1) of the Act."
8. In the case of National Insurance Company Ltd. v. Narendra Samal and Anr., 1993 ACJ 1095, Orissa High Court, held as follows :
"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 be He 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 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."
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. Choudhary 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 (Ori). 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.
9. A Division Bench of the Kerala High Court in the case of New India Assurance Co. Ltd. v. M. Jayarama Naik, 1982 ACJ 3 (Ker), 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.
10. Regarding 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 of 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 proviso 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.
11. In the case of Koili Bewa and Ors. v. Akshaya K. Mishra and Anr., 1994 ACJ 215, the Division Bench of Orissa High Court held as follows :
"8. A perusal of the aforesaid decision of the Kerala High Court shows that the Bench had also stated that if appeal preferred even by the insurer succeeds, the same will jeopardise the employee's right to recover compensation from the employer also. Really, what the insurer seeks in the appeal is that the insured may not be found to be liable to pay the compensation, because of which the insurer would also not beliable. It was, therefore, stated that an appeal by the insurer is really for and on behalf of the employer and in his stead and so, what the employer cannot do by himself, viz., filing of an appeal without complying with the requirement of the proviso, cannot be done by another on his behalf."
12. In the case of United India Insurance Company Ltd. v. Smt. Chandra Kali and Anr., 2002 (4) AWC 3243 ; 2003 (1) TAC 112, the Division Bench of Allahabad High Court following the judgment of Karnataka High Court in the case of United India Insurance Company v. Kashimsab, held as follows :
"26. Now the point for determination is whether, the Insurance Company who has filed the appeal is liable to deposit the amount or not?
27. The learned counsel for the appellant has not cited any law on this point.
28. In this connection, the decision in the case of United India Insurance Company Ltd. v. Gangawwa and Ors., 1997 (75) FLR 439, is relevant, in which, reliance has been placed on the decision of the Division Bench in the case of United India Insurance Company Ltd. v. Kashimsab, ILR 1993 Kar 1991, "that as the insurer steps into the shoes of the employer or owner of the vehicle, insurer must deposit the compensation before filing the appeal."
29. In view of the abovementioned decisions, the appeal is not maintainable."
13. In view of the aforementioned decisions, it is held that the third proviso to Section 30 of the Act is applicable to Insurance Company and since present appeal has been filed without complying with the requirement of third proviso to Section 30 of the Act, it is not maintainable.
14. In the result, the appeal is dismissed.