ORDER : M. Venkata Ramana, J. 1. This Civil Miscellaneous Appeal is directed against the order of the Commissioner under Workmen Compensation Act and Assistant Commissioner of Labour-I Circle, Guntur, in W.C. Case No. 19 of 2002 dated 17.06.2002. 2. This is an appeal by the claimant. 3. By the above order, the Commissioner under Workmen Compensation Act ('Commissioner' for short) awarded a compensation of Rs. 69,842/- to the appellant and against the respondents, against a claim for Rs. 2,00,000/- with costs and interest. 4. The appellant worked as a driver of lorry AP 9U 1229. This lorry belonged to the first respondent. On the date of the incident alleged in this case, viz. 08-06-1998, this lorry was insured with the second respondent and that the policy of insurance therefor, was in force by then. 5. The case of the appellant is that on 08.06.1998 when he was on duty driving the lorry AP 9U 1229 carrying cement load to Madras from Chillakallu, at about 2.30 a.m. when it came near Moosi bridge, Tangutur, Prakasam District, another lorry AEE 4559 coming from opposite direction driven in a rash and negligent manner dashed against this lorry. In this accident, the appellant received injuries and also the driver of the opposite lorry. The appellant, according to his version, was initially admitted in Government Hospital, Ongole and a case in Crime No. 63 of 1998 was also registered in Tanguturu Police Station in respect of this accident, wherein after due investigation, a charge sheet was also filed on the file of the Court of learned II Additional Munsif Magistrate, Ongole in C.C. No. 236 of 1998. 6. The appellant later on was treated in Vijaya Orthopaedic Center, Suryapet, Vijayawada, as in-patient in between 10.06.1998 and 09.07.1998. Thereafter he attended follow up in that hospital and later in Government General Hospital, Guntur. 7. According to the appellant, inspite of such prolonged treatment, the injuries suffered by him in that accident affecting his right knee and hip joint did not heal completely and that his movements got restricted thereby. There was shortening of his right leg on account of this fracture due to mal-union of the bones and thus, he suffered 100% disability, according to the appellant. 8. By the date of this accident according to the appellant, the first respondent was paying him wages at Rs. 3,000/- per month including batta and his commission. There was shortening of his right leg on account of this fracture due to mal-union of the bones and thus, he suffered 100% disability, according to the appellant. 8. By the date of this accident according to the appellant, the first respondent was paying him wages at Rs. 3,000/- per month including batta and his commission. Thus, the appellant claimed that since he suffered the injuries and consequent disability in the course of and during employment of the first respondent, he as well as the second respondent are liable to pay compensation claimed in all of Rs. 2,00,000/- with 12% interest from the date of the accident till realisation. 9. The first respondent remained ex parte before the Commissioner. The second respondent filed a detailed written statement opposing this claim denying that the appellant was an employee of the first respondent, that the alleged accident occurred during and in course of such employment, that the appellant did not suffer disability as claimed nor he was receiving such wages as claimed. It also denied the nature of treatment the appellant had, for the alleged fracture apart from questioning that the appellant had valid and effective driving license. It also called the claim being unnecessarily excessive. 10. Basing on the material and pleadings, the Commissioner settled the following issues: 1. Whether the applicant was a workman as per the provisions of the Act and he received personal injuries in an accident arising out of and in the course of his employment? 2. What was the age of the applicant at the time of accident? 3. What were the wages paid to the applicant at the time of accident? 4. What was the loss of earning capacity suffered by the applicant? 5. Amount of compensation payable? and 6. Who are liable to pay the compensation? 11. In the course of enquiry before the Commissioner, the appellant examined himself as A.W. 1 and an Orthopaedic Surgeon as A.W. 2 while relying on Ex. A1 to Ex. A11. The second respondent did not choose to lead any evidence, either oral or documentary. 12. Basing on such material, the Commissioner by the impugned order awarded compensation to the extent stated above making both the respondents jointly and severally liable and in favour of the appellant. 13. The second respondent did not choose to question this order by an appeal. 14. 12. Basing on such material, the Commissioner by the impugned order awarded compensation to the extent stated above making both the respondents jointly and severally liable and in favour of the appellant. 13. The second respondent did not choose to question this order by an appeal. 14. Heard Sri Siva Prasad, learned counsel for Sri Posani Venkateswarlu, learned counsel for the appellant and Sri Nallari Rama Krishna, learned counsel for the second respondent. 15. The appellant raised substantial questions of law in this appeal. 16. Now, the following points arise for determination: 1. Whether the appellant suffered disability at 100% and entitled for consequent enhancement in compensation? 2. Whether the appellant is entitled for interest on the compensation awarded? 3. To what relief? 17. POINT No. 1: The appellant suffered injuries to his right lower limb when the lorry AP 9U 1229 driven by him on 08.06.1998 at 2.30 a.m. at Moosi Bridge near Tangutur, Prakasam District, was hit by an opposite lorry AEE 4229. The appellant was then in the employment of the first respondent and thus this accident occurred during and in the course of his employment. 18. Thus, there is justification for the appellant to claim compensation in terms of Section 3 of Workmen Compensation Act, since he was an employee working for the first respondent at the time of the alleged incident. The oral evidence of appellant as A.W. 1 when considered along with Ex. A1, certified copy of FIR registered by Tangutur Police and Ex. A2 the charge sheet filed after due investigation establish the same. Added to it, the proof so offered by the appellant was not rebutted before the Commissioner by the second respondent in any manner. Since the findings so recorded by the learned Commissioner in the impugned order are not questioned by second respondent, this fact stood confirmed since such findings have become final. 19. The injuries suffered by the appellant were initially observed in Government Hospital, Ongole. Ex. A4 is the copy of the wound certificate issued by Civil Assistant Surgeon, District Hospital, Ongole in the course of investigation by the police into this incident. When the appellant was examined at 5.00 a.m. on 08.06.1998 in that hospital, an abrasion over lower part of right thigh of 10 cm x 5 cm and two lacerations at lower end of right thigh of 2cm X 1cm were observed. When the appellant was examined at 5.00 a.m. on 08.06.1998 in that hospital, an abrasion over lower part of right thigh of 10 cm x 5 cm and two lacerations at lower end of right thigh of 2cm X 1cm were observed. When X-ray was taken out in the same hospital as seen from Ex. A4, it revealed a fracture to his right knee and that upper end of tibia was affected. There is material on record to establish such fact through Ex. A6 to Ex. A10, which are relating to the treatment the appellant had. Ex. A10 X-ray discloses the nature of fracture suffered by the appellant, clearly depicting the abnormality resulting in mal-union of bones. This fact is testified by A.W. 2 Orthopaedic Surgeon of Government General Hospital, Guntur. 20. The Commissioner mainly relied on evidence of A.W. 2. He is the Orthopaedic Surgeon, who treated the appellant long after the accident. Probably when the appellant visited him for follow-up, A.W. 2 had an occasion to examine and attend on the appellant. His version is clear that the appellant attended his clinic on 24.07.2002 complaining of an old injury and pain at right knee joint. It was a three years old injury according to A.W. 2 and who, upon examination found that there was restriction of movements of right knee joint. He further observed, upon going through the X-rays that the fracture got united at lateral condyle of right tibia, leading to a depression, disturbing lateral joint line of right knee. 21. A.W. 2 also observed limping by the appellant on account of shortening of right leg by 1/2" inch and walking was painful. A.W. 2 opined that the appellant suffered 25 to 30% disability of permanent partial nature and which would lead to complications in advanced age. He also opined that the appellant would find difficult to drive a vehicle and could drive for short distances only. 22. On the material, the Commissioner held that this disability is 35%. The Commissioner had personally examined the appellant in the course of enquiry and observed limp in his movements. There is no disability certificate produced by the appellant in the course of enquiry nor he was subjected to any examination for such purpose by a competent medical board. Except testimony of A.W. 2, there is no other material in this context. 23. There is no disability certificate produced by the appellant in the course of enquiry nor he was subjected to any examination for such purpose by a competent medical board. Except testimony of A.W. 2, there is no other material in this context. 23. However, Sri Shiva Prasad, learned counsel for the appellant contended in this appeal that assumption of disability at 35% is incorrect and having regard to the nature of injury suffered, it's consequences affecting the appellant, who had to give up his avocation as driver should necessarily lead to infer that he suffered 100% disability. It is also contended that it is a permanent disability and that there is no material placed by the 2nd respondent to question such situation of the appellant. 24. In the absence of any better proof, the Commissioner was constrained to consider the evidence of A.W. 2 Orthopaedic Surgeon. He had an occasion to examine the appellant three years later. Thus long after the incident as well as the treatment, this Orthopaedic Surgeon observed the situation of the appellant likewise. Without letting in appropriate evidence, on account of restricted movement of right leg due to facture to knee joint, it cannot readily be inferred that the functional disability suffered by the appellant stood at 100%. 25. In this context, the testimony of A.W. 2 that the appellant could drive a vehicle for short distances is a factor, assuming importance, which clearly reflects that it was not 100% functional disability suffered by the appellant. Even otherwise, the Commissioner, on account of his observation and basing on the testimony of A.W. 2 had come to conclusion that the appellant suffered 35% partial permanent disability, which remained the factor for computation of compensation in terms of the Workmen Compensation Act. 26. Therefore, the findings so recorded by the Commissioner in this context, are proper and justified. There is no reason to depart there from nor any material is available to accept the contention of the appellant. 27. The Commissioner took into consideration the monthly wages of the appellant at Rs. 2,000/- for the purpose of computation of compensation in terms of Workmen Compensation Act as amended in the year 1995 and applying appropriate factor, rightly came to a conclusion, to award a compensation of Rs. 69,842/- in favour of the petitioner. 27. The Commissioner took into consideration the monthly wages of the appellant at Rs. 2,000/- for the purpose of computation of compensation in terms of Workmen Compensation Act as amended in the year 1995 and applying appropriate factor, rightly came to a conclusion, to award a compensation of Rs. 69,842/- in favour of the petitioner. Liability of both the respondents also fixed to repay this amount on account of subsisting insurance contract between the second respondent and the first respondent by the date of the accident. Thus this point is answered. 28. Point No. 2: The material on record makes out that the first respondent failed to pay compensation in terms of the Workmen Compensation Act within one month from the date when it fell due. The date when the first respondent should have paid compensation, should be the date of the accident itself, i.e., 08.06.1998 in terms of Section 4A(3)(1)(e) of this Act. In such instances, the employer is liable to pay simple interest on the amount so determined. The Commissioner did not address this question completely and there is no finding in the impugned order, in this respect. 29. Though there is evidence of A.W. 1 i.e. the appellant that the first respondent had paid Rs. 1,000/- to meet medical expenses, it cannot be a part of compensation, which he is entitled to in terms of this Act. 30. The appellant had specifically claimed interest in his application before the Commissioner. The second respondent did not make out any circumstances against the appellant that he is not entitled for interest as such. Basing on the material and evidence placed by the appellant in given facts and circumstances, he is entitled for the interest on the compensation amount, since the first respondent did not meet such obligation in terms of Section 4A(3)(1)(e). In the circumstances, the respondents are also liable to account for such interest payable to the appellant. If it is awarded @ 9%, with effect from 08.06.1998 on the compensation amount so arrived at by the Commissioner, it appears just and proper. 31. Needless to say that both the respondents are liable to pay interest in proportion jointly and severally. As seen from the award. the Commissioner granted 9% interest from the date of the accident till the date of realisation as a default clause. 31. Needless to say that both the respondents are liable to pay interest in proportion jointly and severally. As seen from the award. the Commissioner granted 9% interest from the date of the accident till the date of realisation as a default clause. That is to say, while granting 30 days time to pay or deposit the compensation amount awarded, the interest was so directed in default of complying such direction. However, it is not the purport of Section 4A of Workmen Compensation Act. What is to be considered is default on the part of the employer to pay compensation within one month from the date it fell due. Therefore imposing such default clause is not a substitute for what is to be granted in terms of Section 4A of Workmen Compensation Act. Thus, this point is held. 32. Point No. 3: In view of findings on points 1 and 2, this Civil Miscellaneous appeal has to be allowed in-part, to the extent stated above in point No. 2. 33. In the result this Civil Miscellaneous Appeal is allowed in part, directing the respondents 1 and 2 to pay interest @ 9% p.a. on Rs. 69,842/- from 08.06.1998 i.e., date of accident till date of deposit of Rs. 69,842/- as directed by the Commissioner under Workmen Compensation Act and in favour of the appellant. The liability of respondents 1 and 2 for this purpose is joint and several. There shall be no order as to costs.