JUDGMENT : K.S. Jhaveri, J. The original opponent no.2-insurance company has filed First Appeal No. 917 of 2011 challenging the award dated 06.07.2010 passed by the Commissioner under the Workman Compensation Case, Bhavnagar in Workman Compensation (NF) Case No. 42 of 2001 whereby the Commissioner allowed the claim and awarded Rs. 43,242/- with 9% interest and 10% penalty. 1.1 First Appeal No. 4586 of 2010 is preferred by the original claimants seeking enhancement of the compensation granted vide award dated 06.07.2010 passed by the Commissioner under the Workman Compensation Case, Bhavnagar in Workman Compensation (NF) Case No. 42 of 2001. 2. The original claimant filed claim petition being Workman Compensation (NF) Case No. 42 of 2001 under the Workmen Compensation Act to the tune of Rs. 3,29,924/- in respect of the accident which occurred on 22.07.1997 while the injured claimant was working in Alang Ship Breaking Yard Plot No. 12. At that time while the claimant was in the process of unloading goods from the Steamer which had arrived at the port at around 5.00 am, the temporary lift which was being used by the claimant suddenly dismantled. The claimant fell down and sustained severe multiple injuries. The claimant thereafter, filed the aforesaid claim petition. After hearing the parties, the authority passed the aforesaid award. 3. Mr. Mehta, learned advocate appearing for the insurance company has submitted that the judgement and award passed by the authority is improper and unjust to some extent and against the provision of law and facts and circumstances of the case. He has submitted that the Commissioner ought to have considered the provisions of Workmen's Compensation Act, 1923 and exonerated the insurance company from the liability of interest. 3.1 Mr. Mehta has further submitted that having regard to the contract of insurance, the insurer was not liable to pay any interest on the awarded sum. In support of this submission, learned advocate has placed reliance on a decision of the Apex Court in the case of New India Assurance Co. Ltd. v. Harshadbhai Amrutbhai Modhiya and another reported in 2006 (5) SCC 192 and submitted that contracting out as regards payment of interest by an employer, therefore is not prohibited in law. 4. Mr. G.M. Joshi, learned advocate appearing for the original claimants submitted that the Commissioner has materially erred in awarding only Rs. Ltd. v. Harshadbhai Amrutbhai Modhiya and another reported in 2006 (5) SCC 192 and submitted that contracting out as regards payment of interest by an employer, therefore is not prohibited in law. 4. Mr. G.M. Joshi, learned advocate appearing for the original claimants submitted that the Commissioner has materially erred in awarding only Rs. 43,242/- on the basis of a certificate and ignoring the fact that the accident rendered the appellant 100% disabled so far as the capacity to work is concerned. He submitted that the Commissioner was justified in awarding only 9% interest and 10% penalty even when the respondents have failed in performance of the duty cast on them by the Act to deposit the amount of compensation within the prescribed time. 5. Though served none appears for the employer. 6. This Court has gone through the documents placed on record including the award of the authority. However, the prayer made in the appeal filed by the insurance company is required to be entertained in view of the decision of the Apex Court in the case New India Assurance Co. Ltd. (supra) of wherein it is observed that the employer can vis-a-vis the insurer contract out any matter not statutorily mandatory such as payment of interest and penalty. On a construction of the contract in question it is clear that the insurer had not undertaken the liability for interest and penalty, but had undertaken to indemnify the employer only to reimburse the compensation the employer was liable to pay among other things under the Workmen's Compensation Act. Unless one is in a position to void the exclusion clause concerning liability for interest and penalty imposed on the insured on account of his failure to comply with the requirements of the Workmen's Compensation Act of 1923, the insurer cannot be made liable to the insured for those amounts. 6.1 In the present case also, construing the contract involved herein, it is clear that the insurer has specifically excluded any liability for interest or penalty under the Workmen's Compensation Act and confined its liability to indemnify the employer only against the amount of compensation ordered to be paid under the Workmen's Compensation Act. In that view of the matter, as the matter was admitted by this court qua interest only, the insurance company is not liable to pay the interest on the amount of compensation awarded by the Commissioner. In that view of the matter, as the matter was admitted by this court qua interest only, the insurance company is not liable to pay the interest on the amount of compensation awarded by the Commissioner. The appeal by the insurance company is therefore required to be allowed. 7. As far as the amount of compensation is concerned, the authority has gone through the evidence in detail and has considered the income of the claimant at Rs. 2000/- in absence of any cogent evidence on record substantiating the claim. Considering the medical certificate issued by Dr. Bipinbhai Kanjibhai stating that the disability of the body as a whole to be 16%, the Commissioner granted compensation of Rs. 43242/- along with 9% running interest and 10% penalty. The amount of compensation is just and proper. However, as discussed aforesaid, the insurance company is not liable to pay interest on the amount of compensation. The same should be recovered from the employer. 8. In the premises aforesaid, First Appeal No. 917 of 2011 is allowed. The award passed by the Commissioner under the Workman Compensation Case in Workman Compensation (NF) Case No. 42 of 2001 is quashed and set aside qua liability of interest payable by the insurance company. The amount of interest, if deposited, by the insurance company shall be refunded. However, if the amount is withdrawn by the original claimants, the same shall not be recovered. It will be open for the insurance company to recover the same from the owner and if the amount is not paid to the claimant it will be open for the claimants to recover the same from the owner. The award of the Commissioner is modified accordingly. First Appeal No. 4586 of 2011 is dismissed. No order as to costs. Appeal by defendants dismissed.