JUDGMENT
Ajoy Nath Ray, J.
1. Mr. Das concedes that his client took no leave under section 170 before the Tribunal. As such the insurer’s appeal is not maintainable.
2. But still there is one point. The respondents have filed an application for condonation of delay of more than 950 days and they seek an enhancement of the award.
3. The award was for over Rs. 5 lac and 12% interest was awarded from the date of application.
4. According to Mr. Das, the condonation application cannot even be made because the appeal by the insurer being not maintainable there cannot be a cross-appeal or a cross-objection but only a separate substantive appeal following the Rules and procedure in regard to the filing of an appeal.
5. That the insurer’s appeal is not maintainable in the present circumstances is settled, as at present, by Nicolletta Rohtagi’s case which is reported at 2003(3) T. A. C. 293 (SC). But what does ‘not maintainable’ mean? Does it mean, as it Mr. Das contends, that although his client has filed an appeal, there is no appeal in the eye of law at all? In our opinion that is not the right view. If an appeal is not maintainable, that means that the Appeal Court dismisses the appeal summarily on the point of lack of maintainability. The case is the same for all appeal filed from unappealable orders.
6. As such, in appropriate cases if the insurer has filed an unmaintainable appeal, even then it might be proper enough for the respondent to base thereupon the respondent’s cross-objection or cross-appeal for enhancement.
7. In the instant case, by the proposed cross-objection the respondents seek an enhancement of the multiplier from 8 to 11. The victim died at the age of 51. He was due to retire at the age of 60. The multiplier of 11 cannot be had in any event, as the scale of salary would not be appropriate after the retirement.
8. Also, if we are to enter into the merits we would have to say something about interest @ 12%; but we do not wish to say anything about that amount. Ultimately the respondents do not really lose anything.
9. The appeal is accordingly dismissed. The award of the Tribunal is fully upheld by us and shall be endoreceable. The amounts deposited to the credit of the appeal be paid over immediately to the respondents or their authorised representative upon sufficient satisfaction of identity by the learned Registrar General. The balance sum, unless paid immediately by the insurer might be obtained by execution of the award before the Tribunal itself by the respondents claimants.
10. The section 5 application is dismissed, as the delay is too long to be executed, and there is no claim which is defeated really by the dismissal.
11. Urgent xerox certified copy of this judgment and order may be supplied to the parties, if applied for.
Tapan Kumar Dutt, J.
I agree.