JUDGMENT : B. Veerappa, J. The claimant has filed the present appeal against the judgment and order dated 17.5.2016 passed in ECA.No.76/2014 by the Senior Civil Judge and Commissioner for Compensation, Chitradurga, allowing the claim petition in part and awarding compensation of Rs.81,820/- with interest at the rate of 9% per annum after 30 days from the date of accident till realization. 2. The claimant-appellant herein filed a claim petition for claiming compensation of Rs.10 Lakhs contending that he was engaged as Driver in a lorry bearing Regn.No.KA-35-B-1136 which was plying from Bengaluru to Davangere along with the Cleaner. When the claimant was driving the vehicle near NH4 Road, Giddobanahally Gate, he lost control over the vehicle and toppled on the left side of ditch, as a result of which he has sustained grievous injuries all over his body. Immediately, he was shifted to Government Hospital at Chitradurga, where he was treated with first-aid and thereafter shifted to Kasturba Hospital, Manipal. The X-ray depicts that the claimant has sustained fracture of left tibia and fibula. He was operated and inserted with rod, screws and plates. He further contended that he was inpatient for 10 days and is taking follow-up treatment and incurred Rs.1,00,000/- towards medical expenses. Due to the grievous injuries/fracture sustained by him he suffered permanent disability and loss of earning capacity and cannot work as he was working prior to the accident. He further contended that he was working as a Driver under the first respondent who was paying monthly wages of Rs.8,000/- and Batta of Rs.100/- per day to the claimant. He further stated that the respondents being the owner and the insurer of the vehicle which is involved in the accident are jointly and severally liable to pay the compensation. 3. In response to the notice issued, the owner of the vehicle-first respondent before the Commissioner for Employees' Compensation/Tribunal filed his objections contending that the claimant was working as a Driver under him in the lorry bearing Regn.No.KA-35-B-1136. He conceded that he was paying monthly wages of Rs.7,000/- and Rs.75/- per day Batta to the claimant. He also admitted that the claimant has sustained grievous injuries in the accident in question, but denied other averments. He stated that the vehicle was insured with the second respondent-Insurance Company as on the date of accident in question and the policy was in force. 4. He also admitted that the claimant has sustained grievous injuries in the accident in question, but denied other averments. He stated that the vehicle was insured with the second respondent-Insurance Company as on the date of accident in question and the policy was in force. 4. The Insurance Company, second respondent before the Commissioner for Employees' Compensation/Tribunal also filed the objections denying the averments made in the claim petition and contended that the liability is subject to terms and conditions of the insurance policy, valid and effective driving license, RC, FC and permit. There is no relationship of employer and employee between the first respondent and the claimant and therefore, sought for dismissal of the claim petition. 5. On the basis of the pleadings, the Commissioner for Employees' Compensation/Tribunal framed the following issues:- 1. Whether petitioner proves that during the course of his employment under respondent No.1 as a driver of lorry bearing Reg.No.KA-35-B-1136 on 31.3.2013 at about 6.00 a.m. near NH-4 road, Giddobanahally gate, has lost control and toppled on the left side of the ditch, as a result he sustained injuries all over his body? 2. Whether petitioner is entitled for compensation? If so, at what quantum and from whom? 6. In order to establish his case, the claimant has examined himself as PW.1 and got examined the doctor as PW.2 and marked the documents at Exs.P1 to P12. The respondent-Insurance Company examined the Manager as RW.1 and got marked the insurance policy as per Ex.R1. 7. After considering the entire material on record, the Commissioner for Employees' Compensation/Tribunal has come to the conclusion that the claimant has proved that the accident has occurred arising out of and during the course of employment under the first respondent on 31.3.2013 and he is entitled to compensation and accordingly, awarded compensation of Rs.81,820/- with interest at the rate of 9% per annum after 30 days from the date of accident till realization. Being aggrieved by the compensation awarded by the Commissioner/Tribunal, the present appeal is filed for enhancement by the claimant. The respondent insurance company has not filed any appeal. 8. I have heard the learned counsel for the parties to the lis. 9. Being aggrieved by the compensation awarded by the Commissioner/Tribunal, the present appeal is filed for enhancement by the claimant. The respondent insurance company has not filed any appeal. 8. I have heard the learned counsel for the parties to the lis. 9. Sri Spoorthy Hegde Nagaraja, learned counsel for the appellant has contended that the impugned order passed by the Commissioner for Employees' Compensation/Tribunal taking monthly wages of Rs.6,500/- is erroneous, contrary to the evidence of PW.1 and material on record and contrary to the amended provisions of Explanation II to Section 4(1) of the Employees' Compensation Act, 1923 ('Act' for short) He further contended that the doctor-PW.2 has specifically stated on oath that the claimant has sustained loss of earning capacity to the extent of 30.9% whereas the Commissioner for Employees Compensation/Tribunal has erred in taking only 9.27%. He further contended that the compensation awarded by the Commissioner/Tribunal is on the lower side. He further contended that the interest awarded by the Commissioner/Tribunal is also on the lower side and contrary to the provisions of Section 4A(3)(a) of the Act. Therefore, he sought to allow the appeal. 10. Per contra, Sri B.Pradeep, learned counsel appearing on behalf of the first respondent-Insurance Company sought to justify the impugned judgment and order passed by the Commissioner for Employees' compensation/Tribunal and contended that in the absence of any documents produced by the claimant, the Commissioner/Tribunal is justified in taking the monthly wages of the claimant at Rs.6,500/- and after taking into consideration the provisions of Section 4(1)(b) of the Act, has rightly deducted 60% while calculating the compensation towards loss of earning capacity. He further contended that the doctor-PW.2 who has assessed the earning capacity has stated that the claimant has lost earning capacity to the extent of 30.9% and the Commissioner/Tribunal has taken it as 9.27% which is just and proper. Therefore, he sought for dismissal of the appeal. 11. Having heard the learned counsel for the parties, it is not in dispute that the claimant was a driver under the first respondent in a lorry bearing Regn.No.KA- 35-B-1136 and the accident has occurred on 31.3.2013 arising out of and during the course of employment which has resulted in the claimant sustaining fracture of left tibia and fibula. 11. Having heard the learned counsel for the parties, it is not in dispute that the claimant was a driver under the first respondent in a lorry bearing Regn.No.KA- 35-B-1136 and the accident has occurred on 31.3.2013 arising out of and during the course of employment which has resulted in the claimant sustaining fracture of left tibia and fibula. It is the specific case of the claimant that his employer used to pay monthly wages of Rs.8,000/- and Rs.100/- per day towards Batta. The Commissioner/Tribunal has taken monthly wages of the claimant only at Rs.6,500/- ignoring the evidence of PW.1 and the admission made by the employer in his statement of objections that he was paying monthly wages of Rs.7,000/- and Rs.75/- per day as Batta to the claimant. Therefore, the Commissioner for Employees' Compensation/Tribunal ought to have taken the monthly wages of the claimant at Rs.7,000/- in view of the admission made by the employer. 12. The doctor-PW.2 who has examined the claimant, has assessed the loss of earning capacity of the claimant to the extent of 30.9%. though PW.2 was subjected to cross-examination, he has reiterated the same in his cross-examination and nothing has been elicited from his mouth contrary to the evidence. The first respondent-Insurance Company has not adduced any contra evidence or produced any material. Taking into consideration the age of the claimant and the nature of the fracture sustained by him, the Commissioner/Tribunal ought to have taken the loss of earning capacity of the claimant at 12% instead of 9.27%. 13. Further, the Tribunal has proceeded to award interest only at the rate of 9% per annum, which is contrary to the provisions of Section 4A(3)(a) of the Act, which prescribes that the claimant is entitled to interest at the rate of 12% per annum. Admittedly, the accident has occurred on 31.3.2013 i.e., after the amendment to the provisions of Section 4(1) Explanation-II of the Act. The evidence of the employer and the statement of objections filed by him before the Tribunal are not in dispute. 14. If the monthly wages of the claimant is taken at Rs.7,000/- and loss of earning capacity to the extent of 12% is taken into consideration and after applying the factor of 218.47, the compensation towards loss of earning capacity of the claimant would be Rs.1,10,108/- (7000x12%x218.47x60%). 14. If the monthly wages of the claimant is taken at Rs.7,000/- and loss of earning capacity to the extent of 12% is taken into consideration and after applying the factor of 218.47, the compensation towards loss of earning capacity of the claimant would be Rs.1,10,108/- (7000x12%x218.47x60%). The medical expenses of Rs.42,314/- incurred by the claimant is also awarded as per the impugned judgment and order, the claimant-appellant herein is entitled to the total compensation of Rs.1,52,422/- with interest at the rate of 12% per annum after 30 days from the date of accident till realization, as against Rs.81,820/- with interest at 9% per annum awarded by the Commissioner for Employees' Compensation/Tribunal. 15. In other words, the claimant-appellant herein is entitled to additional amount of compensation of Rs.70,602/-, with interest at 12% per annum after 30 days from the date of accident till realization. The amount of compensation of Rs.81,820/- awarded by the Commissioner/Tribunal shall also carry interest at 12% per annum after 30 days from the date of accident till realization 16. After reassessing the entire material on record, the claimant is entitled just compensation as under:- Loss of earning capacity Rs. 1,10,108/- Medical Expenses Rs. 42,314/- Total Rs. 1,52,422/- Interest at 12% per annum after 30 days from the date of accident till realization. In view of the above, appeal is partly allowed. The impugned judgment and order dated 17.5.2016 passed in ECA.No.76/2014 by the Senior Civil Judge and Commissioner for Compensation, Chitradurga, is modified to the extent as indicated above. Ordered accordingly.