K.P. Mohapatra, J.
1. This appeal Is directed against the order dated 6-11-1984 passed by the Commissioner for Workmen's Compensation, Cuttack
2. The brief facts of the case are recounted below. The respondent was serving as a helper in the Orissa State Road Transport Corporation garage at Jajpur road under the appellants. On 18 3-1982 while being engaged in fitting of the gear box in vehicle No. ORJ 2190, the respondent received an injury, inasmuch as, a piece of iron material pierced: into his right eye. He was treated by Dr. S. P. Pattnaik, Assistant Professor of Ophthalmology, S. C B. 'Medical College Hospital, Cuttack (witness for the petitioner) and then in Sarojini Eye Hospital, Hyderabad. The treatment became ineffective and ultimately he lost vision of the right eye completely. On the above ground he filed a petition for compensation under the Workmen's Compensation Act (hereinafter referred to as the 'Act' ) before the Commissioner for Workmen's Compensation ('Commissioner' for short ). The appellants in their written statement / stated that the petition was barred by limitation, as well as, bad for misjoinder and non-joinder of parlies, because, the State Government was not added as a party, The respondent suppressed material facts while making the petition. He received injuries on account of his own negligence and so was not entitled to compensation.
3. The Commissioner on the pleadings of the parties framed the following issues :
1. Whether the accident arose in course of and out of employment ?
2. Whether the accident arose out of the negligence of the employee ?
3. What is the quantum of compensation, If any, the applicant is entitled to ?
Before him the respondent examined himself and Dr. S. P. Pattnaik. He also proved a medical certificate, as well as,, a .fitness certificate. On consideration of the materials and evidence placed before him, the Commissioner while answering issue No. 1 held that the accident had occurred in course of the employment of the respondent under the appellants. He answered issue No. 2. by holding that there was no negligence on the part of the respondent. In view of the above finding, he decided issue No. 3 by assessing the cpmpensation at Rs. 12,096/- according to itern 25 Schedule I of the Act. Accordingly, he passed an award in respect of the aforesaid, amount in favour of the respondent on 4-2-1984.
4. Against the award dated 4-2-1985 no appeal was preferred by the appellants. On the other hand, they filed a petition Under Section 6 of the Act read with Section 151 of the Code of Civil Procedure before the Commissioner, challenging his finding on Issue No. 3 and for re-calculating the quantum of compensation, it was specifically stated in the petition that the appellants did not challenge the findings recorded on issue Nos. 1 and 2 of the award and averred that it was necessary to make a further enquiry as to the nature of the injury received by the respondent and the remuneration he was receiving at the relevant time so as to brings the case within the ambit of item 26 of Schedule 1 of the Act After hearing both parties, the Commissioner passed the impugned order reducing the quantum of compensation from Rs. 12,096/- to Rs. 11,760/-.
5. The learned counsel appearing for the appellants urged the following points :
1. No notice was served by the respondent on the appellants Under Section 10 of the Act; and
2. Item 26 of Schedule I of the Act will govern the car according to which compensation should be assessed.
The learned counsel appearing for respondent while mentioning,lthe points mentioned above urged that the appeal itself is barred by limitation Under Section 30(2) of the Act as it was presented beyond 60 days. *Further, as the memorandum of appeal was not accompanied by a certificate of the Commissioner to the effect that the appellant had deposited with him the amount payable under the order appealed against as laid down in the third proviso to Section 30(1) of the Act, the appeal is not maintainable.
6. The question of bar of the appeal by limitation Under Section 30(2) of' the Act as raised by the learned counsel for the respondent merit foremost consideration. According to the aforesaid provision, the period of limitation for an appeal shall be 60 days. Against the original award passed on 4-2-1984 no appeal was preferred in this Court. This appeal is against the impugned order dated 6-11-1984 by which the quantum of compensation awarded to the respondent was reduced from Rs. 12,096/- to Rs. 11,760,- The appeal Under Section 30(1) of the Act was presented on 24-1-1985 clearly beyond the period of 60 days. A petition for condonation of limitation Under Section 5 of the Limitation Act which has been made applicable by Sub-section 3 of Section 30 was not filed. In the memorandum of appeal, nothing was stated as to in what circumstances, the appeal was presented beyond 60 days, nor was any explanation offered for condonation of limitation. Unfortunately, the Stamp Reporter of. this Court being unaware of Section 30(2) did not raise any objection for maintainability of the appeal on the ground of limitation and so without any objection being raised the appeal was admitted on30-4-1985. The order admitting the appeal shows that question of limitation was not considered nor was it condoned. 1986 (II) MANAGING DIRECTOR V. SURENDRA, K. P. Mohapatra, J. 23 Bar of Limitation is a vital point because, the adversary thereby acquires a valuable right which cannot be lightly interfered with to his disadvantage without affording him an opportunity to contest and state that an appeal dead in law on the ground of limitation should not be given a fresh lease of life. If an appeal barred by limitation is proceeded with or limitation is condoned without opportunity-being given to the adversary as referred to above, there shall be denial of natural justice. Reverting to the facts of this case, even though the appeal was admitted, limitation was not condoned by a specific order of the Court Under Section 5 read with Section 30(3) of the Act. Therefore, it cannot be urged that admission of the appeal meant implied condonation of limitation. As a matter of fact, in the realm of law, there is nothing like an order amounting to implied condonation of limitation Law insists and Section 5 of the Limitation Act mandates that an appeal birred by limitation may be admitted if the. appellant satisfies the Court that he had sufficient cause for not preferring the appeal within the prescribed pariod which means, the order of condonation of (irritation shall be supported by reasons. An exparte bald order of admission of a time barred appeal at the respondent's instance (vide paragraph 90 at page 81 of the Limitation Act by Sri B B. Mitra, 18th Edition). It is therefore, manifest that the appeal is barred by limitation.
7. I will now proceed to examine the contentions raised by the learned counsel for the appellants. The first contention is absence of a notice of claim Under Section 10 of the Act. It is a fact that before presenting the petition claiming compensation, the petitioner did not serve a notice Under Section 10 of the Acton the appellants. This defence was however not taken before the Commissioner. It was not stated in the written statement filed by the appelants that the claim petition was liable to be rejected in limine, because of lack of notice Under Section 10. This question was also not raised, nor discussed either in the award dated 4-2-1984 or in the Impugned order dated 6-11-1984. This apart, Clause (b) of the fourth proviso of Section 10(1) is applicable in full force to this case. According to it, want of or any defect or any irregularity in a notice shall not be a bar to the entertainment of a claim if the employer or any one of several employers or any person responsible to the employer for the management of any breach of the trade or business in which the injured workman was employed had knowledge of the incident from any other source at or about the time when it occurred. During hearing, the learned counsel for the respondent produced-two letters issued from the office of appellant No. 1 on 29-6-1982 and 14-10-1982 from which it positively appears that the appellants were aware of the injury sustained by the respondent in his right eye in course of employment and was under medical treatment, in view of the above fact, I hold that for want of notice Under Section 10, the claim of the respondent cannot be refused. I draw support from a Bench decision reported in A. I. R. 1950 Calcutta 261 (Panchanan Gbose v. Bhaggu Barl) in which it was held that notice Under Section 10 is rendered unnecessary if the Court is satisfied on evidence that the employer knew from other sources of the accident at or about the time it took place.
8. The second contention relates to applicability of either item 25 or item 26 of Schedule 1 of the Act. These items are relevant for the purpose of assessment of the quantum of compensation taking into consideration the percentage of loss of earning capacity of the claimant. The Commissioner Was of the view that item 25 was applicable, whereas, (he contention of the learned Advocate for the appellant was that item 26 is applicable to the facts of this case. As per item 25, if there is loss of one eye without complication, the other being normal, then the percentage of loss of earning capacity is 40. According to item 25, in case of loss of one eye without complication or disfigurement of eyeball, the other being normal, the percentage of loss of earning capacity is 30. According to the evidence of Dr. S. P. Pattnaik, Assistant Professor of Ophthalmology, S. C. B. Medical College Hospital, Cuttack, despite treatment of the respondent in Sarojini Eye Hospital, Hyderabad, the foreign body of metallic origin could not be removed from the right eye. The respondent's examination on 5-12-1983 revealed that he is blind in the right eye and the foreign body was in position. There is no chance of regaining the vision in the right eye. Although he was cross-examined at length, This part of his evidence has not been demolished. So, according to the expert opinion, the respondent has become totally blind in the right eye and his case is not a case of loss of' vision of one eye which may either be total or partial. There is nothing in item 26 which excludes partial loss of vision. On the other hand so far as the appellant is concerned, there is total loss of one eye, namely, the right eye, the other/namely, left eye being normal. So, to a case of this nature more appropriately item 25 is applicable and not item 26. 'the above view is supported by two decisions. In 1968 Lab. I. C. 48, Raghuraj Singh v. Divisional Superintendent, Northern Railway, New Delhi, Satish Chandra. J. (as His Lordship then was) analysed entries 25 and 26 of Schedule I of the Act and held as follows :
'The question, therefore is whether the word 'loss' in Entry No. 26 rneals a compnete or total loss of vision or it refers to a case of vision decreasing in degree. The note appended to the 1st Schedule is material for the resolution of this controversy. The note says 'complete and permanent loss of the use of any limb or member referred to in this Schedule shall be deemed to be the equivalent of the loss of that limb or member.' This note indicates that if the use of any limb or member is completely and permanently lost, it will, for the purposes of the Schedule, be a 'loss' of that limb or member. Even if the limb or member itself is not physically lost, but if it becomes totally unusable, there is its 'loss' under the Schedule. An eye is a limb or member of human body. The explanatory note will apply to it, An eye is used for sight or vision. So if the vision of an eye is completely and permanently lost, it will amount to the loss of an eye'. Such a case will fall under Entry 25 because it provides for loss of an eye. Total loss of vision of an eye cannot as well be 'loss' of vision of an eye under Entry 26 because then Entry 26 will become a surplusage, a mere duplication of Entry.25. Such a situation is clearly ruled out by the provisions of a different percentage of loss, of earning capacity in the two cases. Entry 25 provides for a loss of 40% . Entry 26 prescribes a loss of only 30% Obviously, Entry 26 is intended of deal with a loss serious injury than is covered. by Entry 25. Total loss of vision being covered by Entry 25, 'loss of vision' in Entry 26 will refer to a partial loss of vision. A lessening of the vision will, hence, fall under Entry No 26.'
The aforesaid entries also came up for analysis before a Full Berth of the Calcutta High Court and it-was held in 1981 Lab. I. C, 1300, Lipton (India) Ltd. v. Gokul Chandra Mandal, as follows :
'...Item 26 only refers to loss of vision of one eye. Loss of vision may be either total or partial. There is nothing in Item 26 which excludes partial loss of vision. If it was intended that Item 25 would apply only to complete or total loss of vision, it would have made an express provision in that regard. In a welfare legislation like the one with which we are concerned, if any particular provision is capable of two interpretations, the one that is more favourable to the persons for whose benefit the legislation has been made should be adopted.'
In the aforesaid view of the matter, disagreeing with the contention of the learned counsel for the appellants, I hold that Item 25 of the Schedule I of the Act was rightly applied by the Commissioner to this case.
9. It is next necessary to consider the contention of the learned counsel for the respondent that the third proviso to Section 30 is a bar for maintainability of the appeal, because, the memorandum of appeal was not accompanied by a certificate of the Commissioner to the effect that the appellant had deposited with him the amount payable under the order appealed against. Verification of the record shows that though the appeal was presented on 24-1-1985, the certificate issued on 17-9-1985 was filed in Court on 13-12-1985. The certificate shows that the amount of compensation was deposited on 8-4-1985. The third proviso contemplates that the certificate of deposit shall accompany the memorandum of appeal which means, the certificate of deposit cannot be submitted in Court after presentation of the memorandum of appeal. The proviso is mandatory because of the use of the word 'shall' and the penalty attached, which is, no appeal by the employer shall lie unless the memorandum of appeal is accomonied by the certificate of deposit. This view is supported by precedents. In a Bench decision reported in A. I. R 1956 Patna 299 (Bhurangva Coal Co. Ltd. v. Sahabian Mian & another), it was held that the proviso to Section 30(1) of the Act on a true construction demands that the certificate should be filed along with the memorandum of appeal as an essential part of it. In other words, an appeal as contemplated by it cannot be said in law to be an appeal unless it is accompanied with the aforesaid certificate of the Commissioner. that being the import of the proviso, it is difficult to resist on its language that the filing of a memorandum of appeal cannot by itself amount in law to a formal presentation of it, unless the memorandum of appeal is accompanied with the certificate referred to in the proviso. In AIR 1960 Ori 39, Central Engineering Corporation v. Dora Raj, reliance was placed in AIR 1954 Cal. 453 (B. P. Nandy v. General Manager, East India Railway and another) and it was held that the principle of Section 30 is that if the appeal be such that by it the workman's right to the compensation awarded to him is placed in joepardy, security for the workmen 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 any one preferring such an appeal, to diposit the compensation amount. The first part of the observation 'fully supports the respondent's case. The second part of the observation with regard to the workman's right to the compensation awarded being not in dispute in appeal, it is necessary to make reference to all the grounds of appeal which will show that the appellants have challenged the respondent's right to the compensation. A bare perusal thereof will convince any one that the appellants have not only challenged the respondent's right to receive compensation they have even challenged the genuineness of the medical certificates and the respondent's right to claim compensation. It is therefore clear that the second part of the observation has also been satisfied in this case and there is no doubt that the third proviso to Section 30 is of mandatory character.
Due regard being had to the aforesaid principle, there is no escape from the conclusion that for contravention of the third proviso to Section 30(1) of the Act which is of mandatory character, the appeal shall not lie, which means, it was liable to be rejected in limine. Accordingly, the' appeal is not maintainable.
10. For the reasons aforesaid, the appeal is dismissed with costs. Advocate's fee at Rs. 100/-.