JUDGMENT : Abdullah Gulamahmed Uraizee, J. 1. These two appeals under Section 30 of the Workmen Compensation Act arise from selfsame judgment and order dated 31.03.2006 of the Commissioner for Workmen Compensation Labour Court No. 2, Bharuch in W.C. Application No. 88 of 1993 and are being disposed of analogously by this judgment. 2. The facts are in narrow compass, the respondent No. 1-Balubhai Dahyabhai Patel was working as an operator with the Krushna Chemical (appellant of First Appeal No. 3528 of 2012). On 18.09.1992, the chemical came out from the auto floor vessel as the pressure gauge was not changed. This chemical spilled over the body of the employee as a result he suffered injuries. This accident happened during the course of his employment. He instituted Workmen Compensation (NF) Application No. 88 of 1993 to recover the compensation of Rs. 75,000/- with interest and penalty and costs from the employer and the Insurance Company. The Commissioner, by his judgment and order dated 31.03.2006 allowed the Claim Application and directed the Insurance Company and the employer to pay a sum of Rs. 93,450/- with 12% interest jointly and severally. The employer was further directed to pay a sum of Rs. 23,393/- being 25% of the awarded compensation as penalty. The Insurance Company has preferred an appeal to question his liability to pay the compensation while the employer has preferred an appeal to question the liability of payment of penalty. 3. I have heard Mr. Shelat, learned advocate for the Insurance Company, Mr. Gadhia, learned advocate for employer and Mr. Pandya, learned advocate for the claimant. 4. Mr. Shelat, learned advocate for the Insurance Company has vehemently urged that the Commissioner ought not to have fastened the liability of payment of the compensation on the Insurance Company in absence of the Insurance Policy. He further submits that in view of the decision of the Supreme Court in the case of Kerala State Electricity Board and Another vs. Valsala K. and Another, AIR 1999 SC 3502 , the Commissioner ought to have awarded interest at the rate of 6% instead of 12% as the accident had happened before 1992 i.e. before the amendment in Section 4(A) of W.C. Act. He, therefore, urges that the appeal preferred by the Insurance Company may be allowed. 5. Mr. He, therefore, urges that the appeal preferred by the Insurance Company may be allowed. 5. Mr. Gadiya, learned advocate for the employer has vehemently urged that the Commissioner could not have assessed the compensation on the basis of 100% disability. He submits that the accident had happened on 18.09.1992 and the workman continued in employment. Had he took voluntary retirement in the year 2004. He suffered 100% disability, he would not have continued in employment for 12 years. He submits that the disability certificate at Exhibit-108 shows that the workman had suffered 43% disability in relation to left lower limb. This disability is not the scheduled injury, and therefore, the disability should be proportionate to loss of earning capacity, as has been held by the Supreme Court in the case of Rajkumar vs. Ajay Kumar, (2011) 1 SCC 342. According to his submission, as per the medical report, the workman had suffered 50% disability, and therefore, the Commissioner has wrongly awarded the compensation on the basis of 100% disability. It is his further submission that there was no delay on the part of the employer in submitting the Claim form with the Insurance Company which was not accepted and repudiated, and therefore, it cannot be said that there was any delay on the part of the employer. Hence, penalty imposed on the employer is required to be quashed and set aside. He, therefore, urges that the appeal may be accordingly allowed. 6. Mr. Pandya, learned advocate for the employer has supported the impugned judgment and order of the Commissioner. He submits that the employee because of the injuries is unable to see as he has lost his vision. It is his further submission that because of loss of vision, the employer had to take voluntary retirement in the year 2004. He submits that there was 100% disability suffered by the employer and the Commissioner has not committed any error in determining the compensation on the basis of 100% disability. So far as the interest is concerned, he submits that considering the overall facts, the impugned order has rightly directed the Insurance Company and employer to pay the compensation with 12% interest which does not warrant any interference in this appeal. 7. So far as the interest is concerned, he submits that considering the overall facts, the impugned order has rightly directed the Insurance Company and employer to pay the compensation with 12% interest which does not warrant any interference in this appeal. 7. Having heard learned advocate of either side, and it appears from Exhibit-108 disability certificate that the employer had suffered disability to the extent of 43% in relation to the left lower limb. It is undisputed fact that after the accident which happened on 18.09.1992, the workman continued in the employment till the year 2004 when on his own volition, he took voluntary retirement. Had he suffered 100% disability as concluded by the Commissioner, he would not have continued in the employment for more than a decade. 8. The Supreme Court in the case of Rajkumar vs. Ajay Kumar (supra) in paragraph No. 19 has summarized the principles regarding the assessment of loss of future earning on account of permanent disability. "19. We may now summarize the principles discussed: (i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity. (ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. TO put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that the percentage of loss of earning capacity is the same as the percentage of permanent disability). (iii) The doctor who treated an injured claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard to the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety. (iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors." 9. Keeping in mind the broad principles as regards the permanent disability. The disability certificate Exhibit-108 required to be considered. It emerges from the disability certificate that the workman had suffered 43% disability in relation to left lower limb. Keeping in mind the broad principles as regards the permanent disability. The disability certificate Exhibit-108 required to be considered. It emerges from the disability certificate that the workman had suffered 43% disability in relation to left lower limb. Moreover, Exhibit-103 Medical Certificate reveals that the workman had suffered some burn injury on right eye and had opacity considering this two medical certificates coupled with the fact that even after the accident, the workman continue in the job for more than one decade, it cannot be said that he had suffered 100% disability. Considering the overall facts of the case, I am of the opinion that the compensation admissible to the workman is required to be assessed on the basis of Exhibit-108 disability certificate wherein the disability is assessed at 43%. The Commissioner has assessed the wages of the workman of Rs. 1000/- per month and accordingly considering the Disability Act, 43% admissible compensation would be as under:- "Rs. 500 x 186.90 (RF) x (disability @ 43%) (rounded off) - Rs. 40,184/-" 10. So far as the interest on the awarded compensation is concerned, the Supreme Court in the case of Kerala State Electricity Board (supra) in paragraph No. 5 has held as under:- "5. Our attention has also been drawn to a judgment of the Full Bench of the Kerala High Court in United India Insurance Co. Ltd. vs. Alavi, 1998 (1) Ker LT 951 (FB) wherein the Full Bench precisely considered the same question and examined both the above noted judgments. It took the view that the injured workman becomes entitled to get compensation the moment he suffers personal injuries of the types contemplated by the provisions of the Workmen's Compensation Act and it is the amount of compensation payable on the date of the accident and not the amount of compensation payable on account of the amendment made in 1995, which is relevant. The decision of the Full Bench of the Kerala High Court, to the extent it is in accord with the judgment of the larger Bench of this Court in Pratap Singh Narain Singh Deo vs. Srinivas Sabata, AIR 1976 SC 222 : 1976 Lab IC 222 (supra) lays down the correct law and we approve it." 11. Indisputably, the case on hand, the accident had happened on 18.09.1992 and Section 4(A) of W.C. Act was amended with effect from 15.09.1995. Indisputably, the case on hand, the accident had happened on 18.09.1992 and Section 4(A) of W.C. Act was amended with effect from 15.09.1995. The un-amended provision of Section 4(A) prior to amendment provided for interest at the rate of 6%. Therefore, the Commissioner has clearly fallen in error in awarding 12% interest on the awarded compensation, and it should be at the rate of 6%. 12. Mr. Pandya, learned advocate for the workman has strenuously urge that the penalty which is awarded at the rate of 25% of the compensation should be 50% as the compensation was not paid promptly. This submission cannot be countenanced. It appears that the employer had promptly submitted the form to the Insurance Company for payment of compensation to the workman, but, the Insurance Company had repudiated the claim. In any case the order of penalty is a discretionary order of the Commissioner has in light of the facts of the case deem it just an proper to award penalty at the rate of 25% and this discretion does not warrant any interference in this appeal. 13. Penalty, at the rate of 25% of the revised compensation would come to Rs. 10046/- (25% of Rs. 40,184/-). 14. In view of the above, the appeals succeed in part. The impugned judgment and order of the Commissioner is hereby modified and the workman is held entitled to Rs. 40,184/- as compensation with 6% interest from the date of accident, and he shall also entitled penalty of Rs. 10046/- at the rate of 25% of the awarded compensation. 15. By virtue of order passed by this Court, the workman has already withdrawn principal amount of Rs. 93,450/- which was deposited by the Insurance Company. The excess of the compensation shall not be recovered from the workman. 16. The amount for interest which is lying in FDR with the Commissioner is ordered to be return to the Insurance Company after adjusting the interest payable to the workman on the recalculated compensation. 17. The employer has also deposited the amount of penalty in terms of impugned judgment and order. The excess of the penalty amount shall also be refunded to the employer. 18. Parties are left to bear their own costs. 19. Record and Proceedings, be remitted back to the tribunal forthwith.