JUDGMENT : H.K. Rathod, J. 1. Heard learned advocate Mr. H.M. Thakker for appellant - Assurance Co. 2. The appellant-Assurance Co. has challenged order passed by learned W.C. Commissioner, Kutch at Bhuj in WC (NF) Case No. 7 of 2006, Exh.30 dated 21.8.2008. The learned W.C. Commissioner has awarded Rs.4,89,240/- compensation in favour of claimant with 9% interest and 50% penalty has been awarded against employer and liability of interest is fasten upon the Assurance Co. 3. Learned advocate Mr. Thakker has raised contention that W.C. Commissioner has committed an error of law in directing appellant to pay compensation with interest, though there is no provision under W.C. Act to implead the appellant in W.C. Case as there is no contract between the claimant and Assurance Co. He also submitted that W.C. Commissioner has also committed error in directing the appellant to pay compensation along with interest when there is no conclusive documentary evidence in respect of the salary of respondent No. 1. He also submitted that Rs.100/- daily bhathha cannot be considered to be a part of wages. Therefore, assessment of the monthly salary is erroneous. He also submitted that medical certificate, certifying 54% disability as a body which has not been considered and 100% disability has been taken into account without any medical certificate. Therefore, according to him, the W.C. Commissioner has committed gross error in awarding compensation to the claimant with interest against the Assurance Co. Except that, no other contention is raised by learned advocate Mr. Thakker on behalf of appellant. 4. I have considered contentions raised by learned advocate Mr. Thakker and also perused the order passed by W.C. Commissioner. The claim petition was filed by claimant claiming Rs.7,85,910/- under Section 4 of W.C. Act. Shri Jorubha Panchaji Jethwa sustained serious injuries and consequent permanent disablement in a vehicular accident which had taken place on 28.8.2005 at about 23:45 hours near Vishvanath Petrol Pump near Vasad Chokadi on Vasad-Vadodara Road National Highway No. 8. According to claimant, he was resident of village Ratnal, Taluka - Anjar, District - Kutch. He was employed as workman by opponent No. 1. He was working with opponent No. 1 as a driver on the Truck No. GJ-12-U-9713. On 28.8.2005, the applicant was on duty and was proceeding with the said truck from Pandhro to Surat. According to claimant, he was resident of village Ratnal, Taluka - Anjar, District - Kutch. He was employed as workman by opponent No. 1. He was working with opponent No. 1 as a driver on the Truck No. GJ-12-U-9713. On 28.8.2005, the applicant was on duty and was proceeding with the said truck from Pandhro to Surat. At 23.:45 hours, on the said day, when said Truck had reached near Vishvanath Petrol Pump near Vasad Chowkdi on Vasad-Vadodara Road National Highway No. 8 at that time a truck bearing No. KA-01-AB-7888 came from opposite direction and dashed and collided with the truck of applicant and accident took place. In the said accident, the applicant sustained serious injuries over the different parts of the body resulting permanent and total disability and he became incapable to do any work. The applicant became jobless because of the injury received during the course of employment. This injury received by applicant resulted into permanent and total disablement. After receiving the notice from the Commissioner, reply was filed by Assurance Co. vide Exh.24 and thereafter, the matter was proceeded further. The applicant was aged about 34 years serving as a driver with opponent No. 1 on the Truck receiving Rs.3000/- salary plus daily bhathha, totalling to Rs.6000/- which has been objected by Assurance Co. on the ground that Bhathha cannot consider to be a wages. In Para.7 of the order, certain documents are produced by applicant before Commissioner. The applicant has examined himself at Exh.22 and Dr. A.M. Kotak was examined vide Exh.25. No other evidence was produced on record on behalf of applicant. The opponent No. 2 has not submitted any documentary evidence and no oral evidence was led on behalf of opponents. The important fact is that employer remained absent and not filed reply any documentary as well as oral evidence in support of his case. The written argument was placed on record by applicant at Exh.28 and by Insurance Co. at Exh.29. Thereafter, Commissioner has considered various authorities relied by both the parties. The issues are framed by Commissioner in Para.16 after considering pleadings and documents produced on record by respective parties. The Issue Nos. 1 and 2 were examined by Commissioner in Para.18. The written argument was placed on record by applicant at Exh.28 and by Insurance Co. at Exh.29. Thereafter, Commissioner has considered various authorities relied by both the parties. The issues are framed by Commissioner in Para.16 after considering pleadings and documents produced on record by respective parties. The Issue Nos. 1 and 2 were examined by Commissioner in Para.18. The Issue No. 1 is whether the applicant proves that he was workman driver of the opponent No. 1 or not and Issue No. 2 is that whether the applicants proves that he sustained injuries and consequent permanent disablement during the course of his employment with the opponent No. 1 or not. After considering evidence on record and submissions made by both the learned Advocates, Commissioner has come to conclusion that applicant has proved that accident had taken place and in the said accident, the applicant has sustained permanent disablement during the course of his employment with the opponent No. 1. Therefore, in view of contents of FIR coupled with the oral deposition of applicant and cross-examination by opponent No. 2, the W.C. Commissioner has decided Issue Nos. 1 and 2 in favour of the claimant. The 3rd issue is whether the applicant is entitled to get compensation or not and if yes, what amount. Vide Issue No. 3, quantum has been examined in Para.19 by W.C. Commissioner. The W.C. Commissioner while examining Issue No. 3 has come to conclusion that applicant has produced income certificate to show that he used to work as a driver of the opponent No. 1 and used to earn Rs.3000/- as a salary and Rs.100/- per day as Bhathha and in support of such certificate, he has given evidence on oath. The opponents have not produced any rebuttal evidence for disproving income of the applicant. The suggestion which was put by Insurance Co. in cross-examination which has been denied that he was not getting Rs.3000/- plus Rs.100/- as daily Bhathha. Thus, W.C. Commissioner has come to conclusion that applicant was receiving monthly salary of Rs.4000/-. 5. The question of disability which has been certified in medical certificate about 54% has been considered by W.C. Commissioner and also considered age of the applicant. Vide Exh.32, medical case papers of G.K. General Hospital,Bhuj was produced where age of applicant is mentioned as 32 years and school leaving certificate is also considered by W.C. Commissioner. 5. The question of disability which has been certified in medical certificate about 54% has been considered by W.C. Commissioner and also considered age of the applicant. Vide Exh.32, medical case papers of G.K. General Hospital,Bhuj was produced where age of applicant is mentioned as 32 years and school leaving certificate is also considered by W.C. Commissioner. Then, W.C. Commissioner has examined that what amount should be awarded to claimant. Relevant observations are made in Para.21 to 24 which are quoted as under : "21. Now the question remains as to what amount should be awarded to the petitioner looking to his permanent disablement. Now if we go through the disability certificate Exh.39, it is mentioned in it that the applicant has suffered 54% physical disability of left lower limb and as a driver his functional disability is permanent and total. This certificate shows the shaft femur Open Grade I Tibia Fibula left. Treatment was given. Debridment was done. The applicant was initially treated at Syaji Rao Hospital, Baroda and thereafter he took treatment at G.K.General Hospital, Bhuj from 31.8.2005 to 26.9.2005 and from 13.10.2005 to 27.10.2005. Shaft femur was fixed with IM nailing. Tibia was fixed with DCP plate. Wound get infected pus discharge was present. Thereafter, he was treated by Dr. Krudant Arya at Anjar. In support of the certificate the applicant has examined Dr. A.M. Kotak who supported the disability certificate and also supported the injuries sustained by the applicant. Said doctor further deposed that on examination he found the wound on left buttock/left upper thigh, left lower thigh and the infected would on left leg with pus discharging sinus. Said doctor further deposed that there was deformity in frame of bone projection. On the site mobility and tenderness was present. He further deposed that the applicant was unable to walk without support, unable to sit cross legged and squat. He cannot do the labour job and he cannot drive any type of vehicle. The doctor gave detailed measurements of movement of left leg, knee, hip and ankle and the total disability is shown to be 54%. The doctor further deposed that the accidental injuries have resulted into permanent physical disability of 54% of left lower extremity. He further deposed that with the said disability the applicant cannot drive any type of vehicle and as a driver, his functional disability is permanent and total. The doctor further deposed that the accidental injuries have resulted into permanent physical disability of 54% of left lower extremity. He further deposed that with the said disability the applicant cannot drive any type of vehicle and as a driver, his functional disability is permanent and total. In cross-examination, the doctor has admitted that applicant can do any other work except driving. The doctor admitted that he has not treated the applicant but has issued the disability certificate. The doctor also admitted that if physiotherapy treatment is given to the applicant the percentage of permanent disability can be reduced. Thus, on going through the cross-examination by the learned advocate Shri K.H. Vaishnav no substantial and material evidence has come out supporting the case of the opponent. The disability is sustained by the applicant in his left leg and that too at 54% and the doctor has mentioned that the applicant with this disability cannot drive the functional disability of the applicant is permanent and total. It may be mentioned here that according to settled principle of law the disability sustained by the applicant cannot be reduced to half in workman compensation cases. The disability sustained by the applicant and proved by reliable and cogent medical evidence is required to be taken into consideration. 22. The learned advocate Shri Suchday for the applicant has vehemently submitted that disability sustained by the applicant in his right leg is permanent and total, which cannot be reduced to half because the applicant is the heavy vehicle driver and the driver of heavy vehicle cannot be allowed to drive the vehicle on the road with such disability in right leg because it may be risky for the safety of other vehicles on the road. In support of his submission he has relied on the following judgments : FUNCTIONAL DISABILITY :- (1) 1976 ACJ 141 Para.5(SC). (2) 1984 ACJ 739 Para.3(Guj.) (3) 1992 ACJ 484 Para.7 (Guj.) (4) 2000 (2) GLH (UJ) 7 Para 7 (Guj.) 23. This Court has gone through all the four judgments. According to the last judgment of Hon'ble the Gujarat High Court when the disability is functional the same cannot be reduced considering the whole body. This Court is in total agreement with the submission of the learned advocate for the applicant. This Court has gone through all the four judgments. According to the last judgment of Hon'ble the Gujarat High Court when the disability is functional the same cannot be reduced considering the whole body. This Court is in total agreement with the submission of the learned advocate for the applicant. The learned advocate Shri K.H. Vaishnav has submitted that the disability sustained by the applicant cannot be considered as functional disability and it should be reduced to half body as a whole. As held above, as per settled principle of law in W.C. Cases the disability cannot be reduced to half. Thus in the present case the applicant being a driver of heavy vehicle his permanent disability is required to be considered at total and 100%. Therefore, this Court hold that the applicant has sustained permanent and total disability. Since the monthly income of the applicant is considered at Rs.4000/- and the earning capacity of the applicant has been reduced to 100%, therefore, it is not required to be slashed down. Therefore, the datum figure comes to Rs.2400/-. The age of the applicant, as held above, was 32 years, therefore the relevant factor of 203.85 for working out lump sum equivalent of compensation amount in case of permanent disablement can be taken into consideration. Therefore, the compensation can be worked out as under : Rs.2400 x 203.85 x 100 = Rs.4,89,240/-. Therefore, in view of the above circumstances, the applicant is entitled to the compensation of Rs.4,89,240/- which is just and proper compensation to be awarded this case looking to the facts and circumstances of this case. 24. The applicant has also claimed Rs.25,000/- being the amount of medical treatment spent by him. In support of his submission he has produced medical bills at Exh.38. He has also produced the receipt of Rs.6000/- paid to Dr. Arya, Orthopedic Surgeon. In view of the above circumstances, this Court thinks it just and proper, looking to the huge medical bills produced on record, that it will be in the interest of justice to compensate the applicant for this amount of Rs.25,000/-. This Court, therefore, hold that the applicant shall get compensation of Rs.25000/- for medical expenses. The employer is liable to provide the medical facilities to the workmen. This Court, therefore, hold that the applicant shall get compensation of Rs.25000/- for medical expenses. The employer is liable to provide the medical facilities to the workmen. Therefore, it will be in the interest of justice to direct the opponent No. 1 to pay this amount of Rs.25,000/- to the applicant towards the medical expenses. Hence, the issue No. 3 is answered in the affirmative." 6. Thereafter, the W.C. Commissioner has considered that whether employer was negligent in not paying compensation immediately when the accident is occurred with the applicant. The W.C. Commissioner has considered Section 4(A) of WC Act and then, awarded 50% penalty in favour of applicant after considering the various decisions and come to conclusion that it is a liability of employer to pay penalty and not the liability of the Assurance Co. The employer has not deposited the amount of compensation before W.C. Commissioner and not paid the amount of compensation to the applicant. Therefore, it is a duty of W.C. Commissioner to follow observations made by this Court in a decision reported in 1989 (2) ACJ 587 wherein it is held that penalty of 50% for non-payment of compensation, amount awarded by W.C. Commissioner is required to be paid by employer - opponent No. 1 and not by Insurance Co. but, interest is required to be paid by insurer along with compensation amount. In respect to the interest, Para.28 is relevant, therefore, quoted as under : "28. On the other hand, the learned advocate for the opponent, K.H. Vaishnav for the insurance company - opponent No. 2 has vehemently submitted that the claim of applicant is excessive and applicant can be awarded interest more than 6% per annum. The submission of the learned advocate for the insurer also cannot be accepted because the interest is to be awarded according to the ratio of Reserve Bank of India. Therefore, this Court hold that the insurer opponent No. 2 shall pay the interest at the rate of 9% per annum from the date of accident till realisation of the amount of compensation." 7. After considering the aforesaid discussion made by W.C. Commissioner, the contention raised by learned advocate Mr. Thakker that 54% disability which has been certified in medical certificate then to assess 100% disability by W.C. Commissioner is an erroneous decision. The W.C. Commissioner has considered the injury received by applicant. The Dr. After considering the aforesaid discussion made by W.C. Commissioner, the contention raised by learned advocate Mr. Thakker that 54% disability which has been certified in medical certificate then to assess 100% disability by W.C. Commissioner is an erroneous decision. The W.C. Commissioner has considered the injury received by applicant. The Dr. Kotak has supported disability certificate issued by him. He supported the injury sustained by applicant. The disability certificate Exh.39 it is mentioned that applicant has suffered 54% physical disability on left lower limb and as a driver, his functional disability is permanent and total. This certificate shows the shaft femur Open Grade I, Tibia Fibula left and treatment was given. The debridment was done and applicant was initially treated at Sayaji Rao Hospital, Baroda and thereafter, he took treatment at G.K.General Hospital, Bhuj from 31.8.2005 to 26.9.2005 and from 13.10.2005 to 27.10.2005. Shaft femur was fixed with IM nailing. Tibia was fixed with DCP plate. Wound get infected pus discharge was present. Thereafter, he was treated by Dr. Krudant Arya at Anjar. In support of the certificate applicant has examined Dr. A.M. Kotak who supported the disability certificate and also supported injuries sustained by applicant. Said doctor further deposed that on examination he found the wound on left buttock/left upper thigh, left lower thigh and infected wound on left leg with pus discharging sinus. Said doctor further deposed that there was deformity in frame of bone projection. On the site mobility and tenderness was present. He further deposed that applicant was unable to walk without support, unable to sit cross legged and squat. He cannot do the labour job and he cannot drive any type of vehicle. The doctor gave detailed measurements of movement of left leg, knee, hip and ankle and total disability is shown to be 54%. The doctor further deposed that accidental injuries have resulted into permanent physical disability of 54% of left lower extremity. He further deposed that with the said disability applicant cannot drive any type of vehicle and as a driver, his functional disability is permanent and total. In cross-examination, doctor has admitted that applicant can do any other work except driving. The doctor further deposed that accidental injuries have resulted into permanent physical disability of 54% of left lower extremity. He further deposed that with the said disability applicant cannot drive any type of vehicle and as a driver, his functional disability is permanent and total. In cross-examination, doctor has admitted that applicant can do any other work except driving. In this background, when driver received injury and it was resulted into 100% disability and incapacity in earning capacity, the Apex Court has considered that doctor may certify 54% disability but, looking to the injury when he is not able to work as a driver, he is entitled the benefit of compensation as a 100% disability and incapacity in earning capacity, in case of K. Janardhan v. United India Insurance Co. Ltd. And other reported in 2008 (8) SCC 578. The relevant observations of the said decision are in Para.2 to 6 are quoted as under : 2. The claimant-appellant a tanker driver, while driving his vehicle from Ayanoor towards Shimoga met with an accident with a tractor coming from the opposite side. As a result of the accident, the appellant suffered serious injuries and also an amputation of the right leg up to the knee joint. He thereupon moved an application before the Commissioner for Workmen's Compensation praying that as he was 25 years of age and earning Rs.3,000/- per month and had suffered 100% disability, he was entitled to a sum of Rs.5 lac by way of compensation. 3. The Commissioner in his order dated 18th November, 1999 observed that the claimant was 30 years of age and the salary as claimed by him was on the higher side and accordingly determined the same at Rs.2000/- per month. The Commissioner also found that as the claimant had suffered an amputation of his right leg up to the knee, he has said to have suffered a loss of 100% of his earning capacity as a driver and accordingly determined the compensation payable to him at Rs.2,49,576/- and interest @ 12% p.a. Thereon from the date of the accident. 4. An appeal was thereafter taken to the High Court by the Insurance Company - respondent. 4. An appeal was thereafter taken to the High Court by the Insurance Company - respondent. The High Court accepted the plea raised in appeal that as per the Schedule to the Workmen's Compensation Act, the loss of a leg on amputation amounted to a 60% reduction in the earning capacity and as the doctor had opined to a 65% disability, this figure was to be accepted and accordingly reduced the compensation as already mentioned above. It is in this circumstance, that the aggrieved claimant has come up to this court. 5. The learned counsel for the appellant has raised only one argument during the course of the hearing. He has submitted that the claimant - appellant being a tanker driver, the loss of his right leg ipso facto meant a total disablement as understood in terms of Section 2(1)(e) of the Workmen's Compensation Act and as such the appellant was entitled to have his compensation computed on that basis. In support of this plea, the learned counsel has placed reliance on Pratap Narain Singh Deo v. Srinivas Sabata & Anr. (1976) 1 SCC 289 . The cited case pertained to a carpenter who had suffered an amputation of his left arm from the elbow and this court held that this amounted to a total disability as the injury was of such a nature that the claimant had been disabled from all work which he was capable of performing at the time of the accident. It was observed as under: 5. The expression "total disablement" has been defined in Section 2(1)(e) of the Act as follows: "(1) `total disablement' means such disablement whether of a temporary or permanent nature, as incapacitates workman for all work which he was capable of performing at the time of the accident resulting in such disablement." It has not been disputed before us that the injury was of such a nature as to cause permanent disablement to the respondent, and the question for consideration is whether the disablement incapacitated the respondent for all work which he was capable of performing at the time of the accident. The Commissioner has examined the question and recorded his finding as follows: "The injured workman in this case is carpenter by profession .... The Commissioner has examined the question and recorded his finding as follows: "The injured workman in this case is carpenter by profession .... By loss of the left hand above the elbow, he has evidently been rendered unfit for the work of carpenter as the work of carpentry cannot be done by one hand only." This is obviously a reasonable and correct finding. Counsel for the appellant has not been able to assail it on any ground and it does not require to be corrected in this appeal. There is also no justification for the other argument which has been advanced with reference to Item 3 of Part II of Schedule 1, because it was not the appellant's case before the Commissioner that amputation of the arm was from 8" from tip of acromion to less than 4 below the tip of olecranon. A new case cannot therefore be allowed to be set up on facts which have not been admitted or established. 6. Applying the ratio of the cited judgment to the facts of the present case we are of the opinion that the appellant herein has also suffered a 100% disability and incapacity in earning his keep as a tanker driver as his right leg had been amputated from the knee. Additionally, a perusal of Sections 8 and 9 of the Motor Vehicles Act 1988 would show that the appellant would now be disqualified from even getting a driving licence." 8. In view of aforesaid decision of the Apex Court and considering evidence of Dr. Kotak in present facts of case that applicant was not able to work as a driver which amounts to 100% disability and incapacity in earning capacity. Therefore, W.C. Commissioner has rightly examined matter and awarded the compensation, though in medical certificate it was 54% disability certified but, looking to the injuries received by applicant which he became permanently disablement for driving the vehicle then it amount to 100% disability means incapacity in earning capacity. Therefore, the view taken by W.C. Commissioner cannot consider to be erroneous. The contention raised by learned advocate Mr. Thakker cannot be accepted. 9. In respect to interest, learned advocate Mr. Thakker submitted that there is no liability of interest to be paid by Insurance Co. but it is a liability of employer. Therefore, the view taken by W.C. Commissioner cannot consider to be erroneous. The contention raised by learned advocate Mr. Thakker cannot be accepted. 9. In respect to interest, learned advocate Mr. Thakker submitted that there is no liability of interest to be paid by Insurance Co. but it is a liability of employer. This aspect has recently been examined by Apex Court in case of Kamla Chaturvedi v. National Insurance Co. & Ors. in Civil Appeal No. 6691 of 2008 dated 18.11.2008 wherein it is observed that in case if Insurance policy received under the provisions of MV Act then liability of interest is upon the Insurance Co. This aspect has been considered by the Apex Court after considering earlier decision in case of Ved Prakash Garg v. Premi Devi and Ors. reported in 1997 (8) SCC 1 and in case of New India Assurance Co. ltd. v. Harshadbhai Amrutbhai Modhiya reported in 2006 (5) SCC 192 . Relevant observations of said decision are in Para.6 which is quoted as under : "6. In Ved Prakash Garg v. Premi Devi and others [ 1997(8) SCC 1 ] this court observed that the Insurance Company is liable to pay not only the principal amount of compensation payable by the insurer employer but also interest thereon if ordered by the Commissioner to be paid by the insured, employee. Insurance company is liable to meet claim for compensation along with interest as imposed on insurer employer by the Act on conjoint operation of Section 3 and 4(A)(3)(a) of the Act. It was, however, held that it was the liability of the insured employer alone in respect of additional amount of compensation by way of penalty under Section 4(A) (3)(b) of the Act. In New India Assurance Co.'s case (supra) and Ved Prakash Garg's case (supra) was distinguished on facts. It was observed that in the said case the court was not concerned with a case where an accident had occurred by use of motor vehicle in respect whereof the Contract of Insurance will be governed by the provisions of the Motor Vehicles Act, 1988 (in short the `M.V. Act'). A contract of Insurance is governed by the provisions of the Insurance Act, 1938 (in short the `Insurance Act'), unless the said contract is governed by the provisions of a statute. A contract of Insurance is governed by the provisions of the Insurance Act, 1938 (in short the `Insurance Act'), unless the said contract is governed by the provisions of a statute. The parties are free to enter into a contract as per their own volition. The Act does not contain a provision like Section 148 of the MV Act where a statute does not provide for a compulsory insurance or accident thereof. The parties are free to choose their terms of contract. In that view of the matter contracting out so far as the reimbursement of amount of interest is concerned is not prohibited by a statute. This position have been reiterated in P.J. Narayan v. Union of India and others [ 2006 (5) SCC 200 ]. In the instant case the position is different. The accident in question arose on account of vehicular accident and provisions of MV Act are clearly applicable. We have gone through the policy of insurance and we find that no such exception as was the case in New India Assurance Co.'s case was stipulated in the policy of insurance. Therefore, the Insurance Company is liable to pay the interest." 10. Therefore, according to my opinion, W.C. Commissioner has rightly examined matter and properly applied the law and also considered evidence on record under provisions of the WC Act and elaborate judgment is delivered by W.C. Commissioner which really deserves the complements and not a slightest error is committed while giving reasoning in support of his conclusion and entire evidence on record has been properly appreciated. Therefore, the contentions raised by learned advocate Mr. Thakker cannot be accepted and same are rejected. Therefore, there is no substance in present appeal. Accordingly, present appeal is dismissed. 11. As the First Appeal No. 5499 of 2008 is dismissed, no order is necessitated in Civil Application No. 13835 of 2008. Accordingly, Civil Application No. 13835 of 2008 is disposed of. Appeal is dismissed.