M. RAMAKRISHNA, J.

( 1 ) THE appellant-insurer being aggrieved by the judgment and award dated 20-8-1992 made by the Commissioner for Workmen's Compensation, Bijapur, in case No. WC MSR. 46 of 1991 directing the appellant to make good the entire amount of compensation of Rs. 78,648/- awarded for the death of Isak in the accident involving the tempo bearing registration No. KA-28-423 belonging to yaseena Babusaba Nimbargi, respondent 6 herein, has come up with this appeal.

( 2 ) THE appellant has mainly taken the following four grounds to attack the judgment and award appealed against. (1) The Commissioner was not justified in holding that the claimants, respondents 1 to 5 herein, were the legal representatives of deceased Isak, though they failed to do so. (2) The deceased was earning only Rs. 300/- per month plus batta during his employment. But the Labour Court was in error in holding without considering properly the evidence on record that he was getting Rs. 600/- p. M. plus batta of Rs. 10/- per day. (3) The Commissioner has wrongly taken the age of the deceased as 24 years though it was on record that he was more than 30 years at the time of his death. (4) The deceased had a licence to drive only light motor vehicles and not transport vehicles. The tempo he was driving being a transport vehicle and not a light motor vehicle, the appellant was not answerable to the risk he had taken in driving such a vehicle. That being so, the Commissioner was not justified in directing the appellant to pay the entire amount awarded.

( 3 ) DURING hearing, Sri G. S. Kannur, learned counsel for some of the claimants, viz. , respondents 2, 3 and 5, has raised a preliminary objection on the maintainability of this appeal for non-compliance of the mandatory requirement of the third proviso to sub-section (1) of Section 30 of the Workmen's compensation Act, 1923 ('the Act' for short ). His contention is that the appellant to maintain the appeal should have filed along with the appeal a certificate by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against. Since the appellant has failed to do so, the appeal is liable to be dismissed at the threshold as not maintainable.

( 4 ) AN important question of law having been raised on the said proviso, wethink it necessary to record our finding first on it before proceeding to consider the grounds urged in the appeal.

( 5 ) WE have heard the learned counsel on both sides. Sriyuths: S. P. Shankar, Chinnappa and H. G. Ramesh, learned counsel, also assisted the court to consider on this legal question.

( 6 ) SRI O. Mahesh, learned counsel for the appellant, mainly contended that having regard to the language employed in the third proviso to sub-section (1) of Section 30 of the Act particularly the word 'employer', the appellant being not the employer of the deceased need not comply with the said proviso. His contention is that only in a case where an employer aggrieved by the order of the commissioner filed an appeal, he has to comply with the requirement of the said proviso and not in a case where the insurer files an appeal against an order of the Commissioner. In the instant case, the appeal is by the insurer and therefore, he need not comply with such a requirement. That being so, the appeal as filed by the insurer is maintainable. The learned counsel also contended that having regard to the provisions of section 110-AA of the Motor Vehicles Act, 1939 ('the Act of 1939' for short), on the death of, or bodily injury to, any person in the accident, any person entitled to compensation thereon may, notwithstanding anything contained in the workmen's Compensation Act, 1923 and without prejudice to the provisions of Chapter VII-A of the Motor Vehicles Act, 1939, claim such compensation under either of those Acts but not under both. Accordingly, in the instant case, when the claimants claimed compensation before the Commissioner for workmen'

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