JUDGMENT : N.V. Anjaria, J. 1. Heard learned advocate Mr. Harshadray Dave for the appellants and learned advocate Mr. K.K. Nair for the respondent No. 2. On behalf of the first respondent nobody appeared despite service. 2. The present appeal arises from judgment and award dated 30th June, 2007 passed by learned Workmen's Compensation Commissioner in Workmen's Compensation Case No. 24 of 1996 whereby the Commissioner awarded compensation of Rs. 01,64,962.50 Ps. with 9% interest from the date of order till payment. The Commissioner also awarded penalty at the rate of 50%. The appellants herein are the original petitioners before the Commissioner, and they are the heirs of the deceased, the first petitioner being the mother of the deceased. They have preferred this appeal for enhancement. 3. The facts are that the son of appellant No. 1 Revaben died in an accident on 18th May, 1996 when he was driving Maruti Car No. GJ-7A-2142 belonging to the first respondent. It was the case that the deceased was working as an employee-driver of the first respondent and on the fateful day, the deceased was going from the office place to the residence of the employer-first respondent taking Rs. 10.00 lakhs in the aforesaid car at around 04.30 p.m. at the place called College Road, some unidentified persons fired at the car and thereafter looted the money. In the incident the deceased succumbed to the injuries. The maruti car of the first respondent was insured by the second respondent-insurance company. A complaint was registered about the incident at Borsad Police Station. 3.1 The petitioners-heirs claimed Rs. 01,97,955/- with 18% interest and the penalty amount by presenting application under the Workmen's Compensation Act. The first respondent did not file any reply before the Commissioner whereas the insurance company filed reply at Exhibit 14 denying the case. The insurance company filed further reply at Exhibit 22. Applicant Revaben gave her evidence at Exhibit 26. Another witness of the side of the claimant one Nileshkumar Maneklal Panchal was examined at Exhibit 40. Postmortem report was produced at Exhibit 42 whereas the evidence of the insurance company was produced at Exhibit 46 to 50 as well as Exhibit 54. 4. The Workmen's Compensation Commissioner on the basis of the evidence concluded that the deceased was employee of the first respondent and was a 'workman' within the provisions of the Workmen Compensation Act. 5. Postmortem report was produced at Exhibit 42 whereas the evidence of the insurance company was produced at Exhibit 46 to 50 as well as Exhibit 54. 4. The Workmen's Compensation Commissioner on the basis of the evidence concluded that the deceased was employee of the first respondent and was a 'workman' within the provisions of the Workmen Compensation Act. 5. Addressing the only question of quantum raised and arising in the present appeal, while awarding the aforesaid amount the Commissioner took the income of the deceased as Rs. 1500/- per month. The case of the petitioners were that deceased was getting Rs. 1200/- as salary per month and in addition to the salary Rs. 30/- in the nature of daily allowance, aggregating the monthly income to Rs. 1800/-. The Commissioner however took the figure of Rs. 1500/- on the basis of the statement of the father (Exh. 48) of the deceased appears to have recorded during investigation. The statement (Exh. 48) mentioned that as per knowledge given to the maker of the statement-the father by the deceased, the income was about Rs. 1500/- per month. But when the deceased's mother's evidence about the income is available and stands unrebutted, the same should be accepted. 5.1 The specific case of the petitioners was that the deceased was getting Rs. 1800/- per month. The statement of the father regarding total amount was a mere estimation whereas the case of the petitioners was specific that Rs. 1500/- salary and Rs. 30/- everyday as additional amount was paid to the deceased. This is clearly borne out from the deposition of petitioner No. 1 mother (Exh. 26). In the cross-examination this could not be proved or even suggested to be otherwise or less than that. The Commissioner himself clearly stated in the judgment that the said aspect was not challenged and no evidence in rebuttal was produced by the insurance company. The evidence (Exh. 26) should be preferred to the estimated figure stated in the statement (Exh. 48). This Court is inclined to believe on the basis of the evidence that it would be just, proper and reasonable to take monthly earning at Rs. 1800/-. 5.2 Learned advocate for the respondent No. 2 submitted, in vain, that 'wages' would not include the travelling allowance, however this submission was without substance as the deceased was getting daily allowance and not the travelling allowance. 1800/-. 5.2 Learned advocate for the respondent No. 2 submitted, in vain, that 'wages' would not include the travelling allowance, however this submission was without substance as the deceased was getting daily allowance and not the travelling allowance. Therefore the said income was evidenced without rebuttal, the Commissioner ought to have calculated the same and the total monthly income of the deceased was required to be taken at Rs. 1800/-. 5.3 The age of the deceased was taken by the Commissioner to be 23 years and the factor applied was 219.95. The School Leaving Certificate (Exh. 31) shows the date of birth of the deceased to be 22nd November, 1973 and the accident took place on 18th May, 1996. Therefore the finding of the Commissioner was not correct that the age was 23 years. Looking to the birth date and the date of accident, the total completed years of age on the last birth date of the deceased-workman immediately preceding the date on which the compensation fell due would be 22 years completed and 23rd year started, therefore the applicable factor as per Schedule IV under Section 4 of the Act would be 219.95 which is taken by the Commissioner. Therefore applying the said factor as multiplier, compensation would Rs. 900/- (50% of Rs. 1800/- X 219.95) comes to Rs. 01,97,955/- and the present appeal is also restricted to the said amount. Therefore Rs. 01,97,955/- would be the total amount awardable to the appellants. 6. Furthermore, it could be successfully submitted by learned advocate for the appellant that though the Commissioner awarded interest at the rate of 9%. In view of amendment in Section 4 and 4A(3) of the Act which came to be inserted by Amendment in 1995 w.e.f. 15th September, 1995, rate of interest applicable and awardable would be 12% as the accident took place in 1996 after the amendment in view of the provision of Section 4A of the Act. Sub-section (3) of Section 4A in its Clause (a) inter alia provides that where the employer is in default for not paying the compensation under Section 4 as soon as it fell due, then the Commissioner shall direct the employer to pay interest at the rate of 12% or at such higher rate not exceeding the maximum of lending rates of any scheduled bank, on the amount due. Sub-clause (b) provides for penalty of 50%, therefore minimum interest at the rate of 12% is contemplated to be paid, which applies in the facts of the present case. 7. As a result of above discussion, the appeal succeeds. The appellants are held entitled to Rs. 01,97,955/- towards total compensation with 12% interest from the date of judgment and award of Workmen's Compensation Commissioner till actual payment, further entitled to the amount of penalty as directed in the impugned award. Consequently, the impugned judgment and award dated 30th June, 2007 by the Ex Officio Commissioner of Workmen Compensation-the Labour Court Anand in Case No. 24 of 1996 shall stand modified accordingly. Record & Proceedings shall be sent back.