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Judgment
B.S. Patil, J.—This matter is listed on office objection regarding non-deposit of award amount as per order dated 01.04.2011 and for orders on condonation of delay of 331 days in filing this appeal.
This appeal is filed by the Oriental Insurance Company challenging the order passed by the Commissioner for Workmen''s Compensation, Sub-Division 2, Chikkamagalore, on 24.09.2009 awarding compensation in a sum of Rs. 5,24,328/- along with interest for the personal injuries and the resultant permanent disability and the consequent loss of earning capacity suffered by the claimant in the accident that occurred on 27.05.2004.
On the fateful day the claimant was discharging his duties as a fabricator in the construction work taken up by the 1st respondent � employer. At the time when he was attending to the fabrication work, an iron rod pierced into the left leg of the workman. He was immediately shifted to Mallegowda Hospital at Chikkamagalore. His left leg was amputated at the knee. In the claim petition filed by him, he contended that he was completely deprived of his livelihood and opportunity to carry on his occupation as a fabricator because of the amputation of his leg. He contended that he was earning Rs. 200/- per day. He examined himself reiterating the stand taken in the claim petition. The 1st respondent had deposited a sum of Rs. 1,70,400/- before the Commissioner towards compensation payable.
The Commissioner having taken note of the fact that left leg of the injured � claimant had been amputated from the knee, has held that the claimant had lost 100% earning capacity. Based on the evidence on record, the Commissioner has come to the conclusion that accident arose out of and during the course of employment.
As regards the wages earned, the Commissioner has found that injured � claimant was aged about 24 years at the time of accident and as he was a skilled worker engaged in fabrication work, daily wages were required to be taken at Rs. 150/- and the monthly wages at the maximum of Rs. 4,000/-. Applying the relevant factor 218.47, compensation has been worked out to Rs. 5,24,328/- (Rs. 4000 x 60 x 218.47 x 100/100). Out of the said amount, a sum of Rs. 1,70,400/- deposited by the employer on 03.03.2005 has been ordered to be deducted and the remaining amount of Rs. 3,53,928/- has been directed to be paid along with interest at 12%.
This appeal has been filed on 20.10.2010 by the insurance company challenging the findings recorded by the Commissioner, particularly, with regard to the extent of loss of earning capacity and the wages. As mandatorily required under Section 30(1) proviso 3 of the Workmen''s Compensation Act (for short ''the Act''), no appeal by an employer under Clause (a) of Section 30(1) shall lie unless the memorandum of appeal is accompanied by a certificate of the Commissioner to the effect that appellant has deposited with him the amount payable under the order appealed against.
It is true, the employer or for that matter, the insurer have been filing appeals before this Court along with an application seeking permission to deposit the amount and such permission has been granted without insisting for pre-deposit before the Commissioner and production of certificate obtained from him. That does not mean that the requirement of depositing the amount as awarded/ordered by the Commissioner has been dispensed with. It only means that instead of depositing the amount before the Commissioner, the employer/insurer is permitted to deposit the amount on their request before this Court and only thereafter the appeal is taken up for admission which has been treated as substantial compliance of the 3rd proviso to Sec. 30(1) of the Act.
However, in the instant case, though the appeal has been filed in the year 2010, so far the amount has not been deposited. Whatever the employer has deposited before the Commissioner prior to the enquiry was only a sum of Rs. 1,70,400/- and rest of the amount of Rs. 3,53,928/- ought to have been deposited along with accrued interest before this Court in terms of the proviso to Section 30(1) of the Act by seeking necessary permission of the Court.
The order sheet discloses that application filed by the appellant in Misc. Cvl. 18363/10 seeking permission to deposit the award amount was allowed permitting the appellant to deposit the amount within two weeks. On such deposit, the registry was directed to invest the amount in any nationalized bank initially for a period of one year and to renew the same from time to time till the disposal of the appeal. On that condition, stay was also granted. However, though two weeks time expired on 16.04.2011 so far appellant � Insurance Company has not deposited the amount.
It is thus clear that appeal itself was not maintainable without depositing the amount. Secondly, though this Court granted two weeks time to deposit the amount in the year 2011, having obtained an interim order on that condition, the appellant has not deposited the amount. Therefore, on that ground itself this appeal deserves to be dismissed. In any event, having regard to the nature of injury suffered by the claimant, I have also examined the matter with regard to the merit of the case.
Though Sri B.S. Umesh, learned counsel contends that there was no justification for the Commissioner to take loss of earning capacity at 100% and wages at Rs. 4,000/-, I do not find any justification in this submission. The nature of work the injured - claimant was doing was that of a fabricator. He was a skilled worker engaged in fabrication work in building construction. According to his evidence, he has been rendered invalid to carry on the avocation that he was engaged in. The Commissioner has also taken note of the fact that as per the evidence of the claimant he was not in a position to do any other work involving hard labour and thus, he has been forced to be dependant on others for the rest of his life. Having regard to the nature of skilled work that the claimant was engaged as a fabricator, the wages taken at Rs. 4,000/- cannot be termed as excessive or unreasonable.
In the circumstances, the appeal is dismissed. As the appeal is dismissed on merit and also on the ground that the mandatory requirement of depositing the amount has not been complied with, application � Misc. Cvl. 18362/2010 filed for condonation of delay is also dismissed.