THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO C.M.A. No. 1155 of 2011 JUDGMENT: The appeal is ﬁled against the order dated 27.01.2005 in W.C.No.97 of 2004 on the ﬁle of the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour-III, Hyderabad questioning the quantum of compensation. The injured was said to be an employee on the lorry bearing No.ADT 6235 as a labourer for long time and he met with an accident on 01.06.2004 in course of his employment and sustained injuries and also suﬀered permanent disability. The vehicle was insured with the appellant herein. The appellant herein contested the claim and mainly pleaded that the earning capacity of the petitioner is not correct and also the total disability claimed by the petitioner is not proper and consequently the claim of compensation is not legal. However, the lower Tribunal has considered the contentions and awarded a sum of Rs.2,88,603/- as the quantum of compensation taking it as a case of 100% loss of earning capacity. Aggrieved by the said award, the present appeal is filed. The points that arise for consideration are: 1. Whether the appeal is maintainable? 2. Whether the assessment of loss of earning capacity at 100% determined by the Commissioner is legal? POINTS: The learned counsel for the injured-claimant has raised an objection with regard to the maintainability of the appeal on the ground that the amount of compensation i.e. Rs.2,88,603/- was directed to be paid within 30 days from the date of the receipt of the order with interest at 9% per annum thereon and while preferring the appeal only a certiﬁcate was ﬁled to the eﬀect of deposit of the awarded amount of Rs.2,89,681/- by virtue of a cheque dated 21.03.2005 and as the amount of interest was not deposited the appeal is not in conformity with Section 30 of the Workmen’s Compensation Act. It is also sought to be contended by the learned counsel for the claimant that the memorandum of grounds of appeal does not disclose as to under what provision the appeal is filed. However, it is to be noted that under Section 30(1)(a) of the Workmen’s Compensation Act, 1923 (for short “the Act”), the award is being challenged about quantum of compensation and liability and merely because Section 30(1)(a) of the Act is not mentioned, it does not mean that there is no proper reference to the provision of law and it is well settled that mere failure to mention the provision of law or wrong mention of a provision of law will not defeat the right of the party to prefer an appeal. Evidently, in this case, the appellant has not deposited the interest payable and the amount awarded was not paid within 30 days and after ﬁling of the appeal also, the interest is not paid. The question, therefore, is whether the appeal is to be dismissed as being not maintainable. The learned counsel for the claimant relied on the decisions reported in N.I. Assurance Co. Ltd. v. Palle Sattaiah[1] and also a Division Bench judgment of this Court reported in New India Assurance Company Ltd. v. A.Senapathi Reddy[2] and also the judgment of this Court i n Gangireddy Venkateswara Rao v. D.M., New India Assurance Co. Ltd.[3] apart from the judgments of Madhya Pradesh High Court and Himachal Pradesh High Court. He also relied upon the judgment of this Court in batch of C.M.A.Nos.525, 526, 527 and 528 of 2011. According to him, from the reading of these judgments, it is quite clear that unless a deposit is made, the appeal by the insurance company is not maintainable. In some cases even after ﬁling of the appeal, the permission was granted to deposit the amount. The question is whether the deposit of compensation as required under Section 30 of the Act includes the interest payable or the principal amount of the awarded amount, which is under challenge. It is to be noted that under Section 2 (e) of the Act, the ‘compensation’ is deﬁned as one provided by the Act. Section 4 of the Act lays down the principles for determination of the compensation. Therefore, whatever amount of compensation is determined is keeping in view of the principles and the mandate of Section 4 of the Act. It is only under Section 4(a) of the Act, a provision has been made for payment of the interest or penalty on the compensation so awarded under Section 4 of the Act. Therefore, as can be seen from the scheme of the Act, awarding of the interest and awarding of the compensation are two diﬀerent components of the award to be passed by the Commissioner. It is not in dispute that the granting of interest is sometimes optional and imposition of the penalty is also optional for the Commissioner. It cannot also be disputed that the payment of the interest or the penalty need not be simultaneous with the award passed by the Commissioner and that power can be exercised even subsequently by the Commissioner under Section 4 (a) of the Act. Therefore, keeping in view of the deﬁnition of compensation deﬁned under the Act, I feel that what has to be taken into consideration is only the quantum of compensation payable and as determined under Section 4 of the Act for the purpose of determination of the challenge of the award. It is also one of the contentions raised by the learned counsel for the insurance company that the liability of the payment of interest itself is not there and it shall be only against the employer and, therefore, the question of deposit of the interest along with the awarded interest does not arise. In fact, for a purpose of decision on this point, it needs to be considered, touching directly on this point is the decision reported in United India Insurance Company Ltd. v. Shaik Alimuddin[4], wherein this Court after considering the provisions under Section 30 of the Act, the scheme of the Act has speciﬁcally held that the interest is not a component of the awarded amount and failure to deposit the interest is no ground to reject the appeal. In para No.12 of the judgment, it has been speciﬁcally held that the insurance company need not deposit the penalty and interest, which is awarded under clause (aa) while ﬁling the appeal under Section 30(1)(a) of the Act. It is also further to be noted that the judgments relied on by the learned counsel for the claimant referred to above, have not taken into consideration this judgment and those judgments were not considering as to whether the amount to be deposited, includes the interest or not. The batch of judgments, which are relied on by the learned counsel for the claimant only makes a general reference saying that the compensation includes the interest without referring to the statutory provisions of the Act and also referring to the settled decisions of this Court. Therefore, in view of the above circumstances, the contention of the learned counsel for the claimant that the appeal is not property presented cannot be accepted and since the amount has been deposited as awarded though without payment of the interest or the penalty thereon the appeal is validly filed and is maintainable. The learned counsel for the appellant contends that the quantum of compensation determined by the lower Tribunal is against the statutory provisions of the Act. According to him, both the injuries of amputation and fracture, which are admitted only refer to part-II of schedule-I of the injuries as deﬁned in the Act and as per the scheme of the Act, the percentage of disability of such injuries loss of earning capacity of those injuries was also prescribed and determined and both of them clubbed together, the total loss of earning capacity comes to 64% and when the statute itself has provided the method of determination of the loss of earning capacity, the Commissioner has erred in determining the earning capacity of the claimant at 100% and awarding the compensation. To countenance this argument, the learned counsel for the claimant has relied upon a decision reported in P.Narain Singh DEO v. Sriniwas Sabata [5], where a four judges Bench of Hon’ble Supreme Court has considered the scope of determination of permanent disability and also the loss of earning capacity, which has been followed in recent judgment of the Supreme Court reported in S.Suresh v. Oriental Insurance Co. Ltd. and another[6]. In both the cases, the Hon’ble Supreme Court has taken the view that when there is said to be a permanent disability of performance of the duties due to the injuries and livelihood is lost, it has to be treated as 100% loss of earning capacity. The learned counsel for the appellant relies upon Section 2(1)(l) of the Act, which prescribes what is total disablement, as under: 2(1)(l): “total disablement” means such disablement, whether of a temporary or permanent nature, as incapacitates a workman for all work which he was capable of performing at the time of the accident resulting in such disablement. [Provided that permanent total disablement shall be deemed to result from every injury speciﬁed in Part I of Schedule I or from any combination of injuries speciﬁed in Part II thereof where the aggregate percentage of the loss of earning capacity, as speciﬁed in the said Part II against those injuries, amounts to one hundred per cent or more;] According to him, since the proviso of Section 2(1)(l) of the Act determines what is the extent of loss of earning capacity to be taken into consideration, the lower Tribunal could not have gone beyond the deﬁnition provided under the scheme of the Act in determining 100% loss of earning capacity. Evidently, Section 2(1)(l) of the Act deﬁnes total disablement. The main part of the deﬁnition does not speak of the percentage, as such, the deﬁnition has got a clarity in saying that whether the disability is of a temporary or permanent nature, if it incapacitates of workman for all work, which he was capable of performing at the time of accident resulting in such disablement. It shall be taken as a disablement, whereas if the proviso is read, it determines to the percentage of loss of earning capacity with reference to the particular injuries received by the individual. But the proviso does not speak of the importance of the incapacity of performing all the duties are not totally prohibited after the incident, then the schedule provided and the percentage of loss of earning capacity has to be taken into consideration. The contention of the learned counsel for the appellant that the Hon’ble Supreme Court has not taken into consideration the proviso of Section 2(1)(l) of the Act in the above cases, has no relevancy and in this case the ﬁnding of the Commissioner in para 16, taking into consideration the nature of employment with an amputated right leg, it is not possible to visualize that he will be able to do normal work on the lorry. Therefore, the applicant undoubtedly incapacitated for all the work, which he was doing at the time of the accident as a labourer on the lorry. Therefore, in view of the above circumstances, he has applied the ﬁrst part of the deﬁnition under Section 2(1)(l) of the Act and it is a question of fact and opinion arrived at by the Commissioner and I do not think there is any reason to interfere with his opinion. Therefore, for all the above reasons, there are no merits in the appeal. The appellant is to make good the interest, which was not deposited earlier as per the order. Accordingly, the appeal is dismissed. Each party to bear their own costs. ________________________ N.R.L.NAGESWARA RAO, J 16-11-2011 MR THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO C.M.A.No. 1155 of 2011 DATE: 16-11-2011 MR [1] 2000-III-LLJ (Suppl) 731 [2] 2002-III-LLJ 418 [3] 1999 ACJ 262 [4] 1995-LLJ-1-488 [5] 1976-1-LLJ-235 [6] 2010 LLR 250