Judgment : 1. Both the appeals are admitted. Notice after admission made returnable forthwith. By consent, heard both the sides for final disposal. 2. Both the appeals are filed against judgment and order of W.C.A. No. 42/2011, which was pending before the Commissioner appointed under the Workmen's Compensation Act, 1923 ('the Act' for short). In an application filed by the injured, the compensation of Rs. 1,94,430/- is awarded by the Commissioner and order is made against both the employer and the Insurance Company to pay the penalty of 50% amount of compensation. Interest at the rate of 12% p.a. is awarded on the compensation amount, but it is awarded from 19.7.2011 and not from the date of accident. The injured claimant has filed First Appeal No. 3037/2013 to challenge the quantum and also the period from which the interest is made payable. The Insurance Company has challenged the decision against the order of penalty and also against the calculation of compensation. 3. The injured was working as a driver on the truck belonging to original respondent No. 1, employer. Accident took place on 26.4.2010. Claimant sustained fracture injury to his right leg. It is contended that due to the injuries sustained in accident, the claimant is suffering to permanent disability to the extent of 20%, but the functional disability is of 100%. 4. It is the case of claimant that his monthly salary was Rs. 5,000/- and he was getting daily Bhatta of Rs. 50/- from the employer. It is his case that his age was 45 years at the relevant time and due to the injuries, he cannot drive any vehicle including the truck. It is his case that he is entitled to get compensation of Rs. 6,03,320/- and interest on it from the date of accident. It is his case that he had given notice to the employer and as employer did not pay the amount due, he is entitled to get the penalty. 5. The owner filed written statement and contested the matter. He contended that the claimant was appointed on daily wages. He denied that monthly salary of the claimant was Rs. 5,000/-. He admitted that notice was given to him, but he contended that the notice was replied, but the claimant was not available at the address given by him in the notice. 6. The Insurance Company also filed written statement and contested the matter. He denied that monthly salary of the claimant was Rs. 5,000/-. He admitted that notice was given to him, but he contended that the notice was replied, but the claimant was not available at the address given by him in the notice. 6. The Insurance Company also filed written statement and contested the matter. It is the case of Insurance Company that there has been breach of conditions of policy like absence of licence. 7. The record like notice given by claimant and reply given by employer are placed on the record. Oral evidence is given by the claimant that his monthly salary was Rs. 5,000/-, but there is no record whatsoever in support of this contention. However, in view of the fact that the claimant was working as a driver on heavy vehicle like truck, the Commissioner has presumed that his monthly salary was Rs. 5,000/-. The Commissioner has held that the earning capacity of the claimant is reduced by 20% as permanent disability is to the extent of 20%. The accident took place in the year 2010 and this fact is considered by the Commissioner by making presumption about the monthly income. 8. There is substantive evidence of the claimant that he cannot drive the truck. He has examined the doctor, who gave him treatment and who gave him disability certificate. The evidence of doctor and disability certificate show that there was fracture to right leg and due to the fracture there is permanent disability to the extent of 20%. The evidence of doctor shows that X-ray plate was not there when he made assessment of permanent disability. His evidence does not show that any test was taken by him to ascertain that the claimant cannot drive four wheeler vehicle. When in the discharge card, there is mention that there was fracture of tibia right, evidence is given by the doctor that there was compound communitted fracture of right tibia middle third. When there is no mention about shortening of limb and there is no X-ray, evidence is given by the doctor that there is shortening of limb. M.L.C. was not produced before the Commissioner. The record like discharge card shows that claimant was indoor patient from 26.4.2010 to 8.5.2010. One operation was performed and implant was used. The claimant was required to pay Rs. 26,730/- for hospitalisation and treatment. M.L.C. was not produced before the Commissioner. The record like discharge card shows that claimant was indoor patient from 26.4.2010 to 8.5.2010. One operation was performed and implant was used. The claimant was required to pay Rs. 26,730/- for hospitalisation and treatment. The evidence of claimant does not show that he had surrendered his driving licence on the ground that he cannot drive the vehicle. In spite of these circumstances, the doctor has given evidence that the claimant cannot drive the truck. It appears that the disability certificate was issued by the doctor under Rule 291 (3) of Motor Vehicle Act and the assessment of loss of earning capacity as required under the provisions of the Act was not done. 9. The aforesaid injury sustained by the claimant does not fall under Part I of Schedule I. There was no amputation of any limb or member and injury does not fall under Part II also of Schedule II of the Act. The note given under Schedule I of the Act shows that if a limb or a member referred in the Schedule has become useless, there is permanent loss of the use, it can be presumed that there is loss of that limb or member. However, such evidence is not given by the doctor or the claimant. 10. The term 'total disablement' is defined in section 2 (l) of the Act. Evidence on the record and the aforesaid injuries show that the total disability is not proved by the claimant. In view of these facts and circumstances of this case, there was no other alternate than to hold that it is a case of permanent partial disability and accordingly, the compensation need to be calculated as provided in section 4 (1) (c) (ii). 11. In view of the procedure given in section 4 of the Act, 60% of the salary income needs to be multiplied by the relevant factor given in the Act. In view of the evidence, the Commissioner has held that the claimant was aged about 47 years and the factor is taken as 163.07. However, in stead of multiplying 60% of monthly income by the factor, the Commissioner has multiplied this factor with 1000, 20% of the monthly salary. Thus, error is committed by the Commissioner while making calculation. In view of the evidence, the Commissioner has held that the claimant was aged about 47 years and the factor is taken as 163.07. However, in stead of multiplying 60% of monthly income by the factor, the Commissioner has multiplied this factor with 1000, 20% of the monthly salary. Thus, error is committed by the Commissioner while making calculation. If the calculation is made as per the procedure given in the section, the amount of compensation in respect of 20% loss of earning capacity comes to Rs. 97,842/-. 12. In view of the extent of disability and nature of evidence, nothing more could have been given to the claimant and the Commissioner committed error only due to wrong procedure adopted in calculating the compensation amount. The Commissioner has awarded the amount actually spent on the treatment and some amount on other counts and on the other heads the amount of Rs. 32,730/- is awarded by the Commissioner. There is no need to change that amount. Thus, total amount payable to claimant comes to Rs. 1,30,572/-. In view of these circumstances, here only it needs to be observed that the Insurance Company is entitled to recover excess amount paid by it from employer and in turn, the employer can recover excess amount from the claimant and that can be done by using this decision. 13. Reliance was placed by the learned counsel for injured claimant on some reported cases. The facts of reported case (2011) 13 Supreme Court Cases 323 [Nagarajappa Vs. Divisional Manager, Oriental Insurance Company Limited] were totally different. The observations made by the Apex Court are of no use in the present case. Similarly the facts of the other reported cases like AIR 2008 SC 2384 [K. Janardhan Vs. United India Insurance Co. Ltd. and Anr.], (2012) 2 Supreme Court Cases 267 [Mohan Soni Vs. Ramavatar Tomar and Ors.] were altogether different and these cases cannot help claimant to prove that there is 100% functional disability. It needs to be observed that when the claimant comes under the provisions of the Act and not under the provisions of Motor Vehicle Act, 1988, the Commissioner is bound to consider the procedure laid down under the Act for calculating the compensation. 14. On the point of penalty, the learned counsel for Insurance Company placed reliance on the case reported as AIR 1997 SC 3854 [Ved Prakash Garg Vs. 14. On the point of penalty, the learned counsel for Insurance Company placed reliance on the case reported as AIR 1997 SC 3854 [Ved Prakash Garg Vs. Premi Devi and Ors.]. On the other hand, the learned counsel for original claimant placed reliance on 2009 (5) Bom. C.R. 523 [Udhav Rangnathrao Pawar Vs. Sheshrao Ramji Jogdand & Anr.]. In view of the ratio laid down by the Supreme Court, this Court holds that the Commissioner has committed error in directing the Insurance Company to pay the penalty. Under the contract of insurance, the Insurance Company had not agreed to indemnify in respect of penalty amount. So, this Court holds that to that extent the decision of Commissioner needs to be set aside and the appeal filed by the Insurance Company needs to be allowed. 15. On the point of interest, the learned counsel for claimant placed reliance on the case reported as (2012) 12 Supreme Court Cases 540 [Oriental Insurance Company Limited Vs. Siby George and Ors.]. In this case, the Apex Court has held that the interest is payable from the date of accident, the date of receipt of injury. On this point, the learned counsel for Insurance Company placed reliance on the case reported as 2009 (5) Bom. C.R. 523 (Aurangabad Bench) [Udhav Rangnathrao Pawar Vs. Sheshrao Ramji Jogdand & Anr.]. This Court had not referred the cases of Apex Court and this Court held that the interest would be payable from the date of the petition. In the case cited for claimant the old cases of Supreme Court are referred. Thus, to that extent, the decision given by the Commissioner needs to be modified and the interest needs to be allowed from the date of receipt of the injury. In the result, the following order. ORDER (i) Both the appeals are partly allowed, but no order as to costs. (ii) The judgment and order of Commissioner directing the Insurance Company to pay the penalty is hereby set aside. The penalty which is to be calculated as per this decision is to be paid only by employer. (iii) The claim petition of the injured is partly allowed. The employer and the Insurance Company are made liable jointly and severally to pay to the claimant the compensation of Rs. The penalty which is to be calculated as per this decision is to be paid only by employer. (iii) The claim petition of the injured is partly allowed. The employer and the Insurance Company are made liable jointly and severally to pay to the claimant the compensation of Rs. 1,30,572/- (One lakh thirty thousand five hundred seventy two) with interest at the rate of 12% p.a. and the interest would be payable from the date of accident i.e. 24.4.2010. (iv) The employer to pay the penalty amount to the claimant which will be 50% of the compensation amount. (v) The excess amount, if any, paid by the Insurance Company can be recovered from employer by using the present decision. (vi) The interest at the same rate would be payable by the owner to Insurance Company on that amount. (vii) The employer in turn can recover the excess amount paid to the claimant.