JUDGMENT : (Nisha M. Thakore, J.) 1. The present appeal is filed under Section 30 of the Workmen Compensation Act, 1923, at the instance of the Insurance – Company being aggrieved and dissatisfied with the award dated 18.05.2009 passed by the learned Commissioner, Bhuj-Kachchh in W.C. Application (NF) No.26 of 2006. By the said impugned award, the learned Commissioner has held the Insurance Company and the opponent No.1 jointly and severally liable to pay the compensation of Rs.2,84,659/- with interest at the rate of 12% to the original applicant. The leaned Commissioner has also imposed 50% penalty of an amount of Rs.1,42,330/- upon opponent No.1 - employer by its order dated 08.05.2009. Hence, this appeal is under Section 30 of the Workman Compensation Act. 3. In nutshell, the facts of the case as raised in the claim petition are as under: 3.1 The original claimant – Nathulal Moghji Patel was working with the opponent No.1-Patel Travel Services as a driver of bus bearing registration No.GJ-IX-9843, which was insured with the present appellant - Insurance Company. 3.2 At that point of time, he was drawing salary of Rs.6000/- per month. It is alleged that on 25.04.2005 because of the accident of the bus which took place on Ahmedabad – Limdi Highway while he was driving the said bus, the original claimant sustained injuries. It is the case of the original claimant that suddenly an animal came in front of the bus because of which he lost control over the bus resulting into an accident. 3.3 The claim petition was preferred through the next friend and his wife namely Smt. Savitaben Nathulal Patel as the injured claimant had sustained injuries which had made him mentally and physically handicapped. The claim petition was registered as W.C. Application (NF) No.26 of 2006 before the W.C. Commissioner, Kachchh 3.4 The appeal was admitted by this Court vide order dated 09.10.2009. Pending the appeal the appellant - Insurance Company had preferred civil application for stay, wherein at stage of admission hearing, this Court had considered the fact that total amount of Rs.4,28,579/- has already been deposited, out of which sum of Rs.1,82,995.20 is an admitted amount. Pending the appeal the appellant - Insurance Company had preferred civil application for stay, wherein at stage of admission hearing, this Court had considered the fact that total amount of Rs.4,28,579/- has already been deposited, out of which sum of Rs.1,82,995.20 is an admitted amount. The Court permitted the undisputed amount to be deposited and withdrawn by the original claimant, whereas the rest of the amount was directed to be invested in Fixed Deposit Receipts in any Nationalized Bank initially for a period of five years which was directed to be renewed from time to time pending this appeal. The quarterly interest which was to accrue on such deposit was permitted to be paid to the original claimant. The aforesaid order was further modified by this Court vide order dated 21.12.2009 directing the learned Commissioner to pay 30% amount of the disputed amount by account payee cheque in the name of original claimant after due proper verification. The rest of the amount was directed to be invested in any FDRs with any Nationalized Bank. The Court clarified periodical withdrawal of the interest on such FDRs pending this appeal in favour of the original claimant. 4. In background of the aforesaid order, learned advocates appearing for the respective parties have placed on record the calculation. 4.1 Mr. K. V. Gadhia, learned advocate appearing on behalf of the appellant - Insurance Company had submitted that except for the disability factor considered by the learned Commissioner, no other amounts are disputed between the parties. The attention of this Court was invited to the relevant observations made by the learned Commissioner, more particularly, para 28 to contend that having appreciated the evidence brought on record, more particularly, the medical certificate produced at Exh.23/4 issued by Dr. R. B. Trivedi, Neuro Surgeon, the learned Commissioner had accepted to treat the disability as 45% of the body as a whole. However, in the later part of the computation of the amount of compensation has considered the disability sustained by the claimant as 70% instead of 45%. He has, therefore, urged to allow this appeal to the aforesaid extant. 5. Learned advocate Mr.Henil Shah for learned Advocate Mr. Mehul S. Shah for the respondents has fairly accepted the aforesaid submission made by learned advocate for the appellant. 6. He has, therefore, urged to allow this appeal to the aforesaid extant. 5. Learned advocate Mr.Henil Shah for learned Advocate Mr. Mehul S. Shah for the respondents has fairly accepted the aforesaid submission made by learned advocate for the appellant. 6. Noticing the limited controversy raised in the present appeal, it would be appropriate to consider the relevant observations of the learned Commissioner as recorded in para 28 of the impugned order. The same is reproduced hereunder for further consideration: “Now the question remains as to what amount should be awarded to the applicant looking to his permanent disablement. Now if we go through the disability certificate Exh.26, it is mentioned in it that the applicant has suffered 45% physical disability of whole man. The doctor has also mentioned that the speech disability was 15% and the impairment of memory and neurological disorder is 10% of whole man. In support of his case the applicant has also examined Dr.H.M.Hadiya at Exh.25. The doctor has reiterated the same facts as mentioned in the disability certificate Exh.26. The learned advocate Shri D.K.Buch for the insurance company has vehemently argued that the disability arrived at by the medical officer should be reduced to half body as a whole. It may be mentioned here that according to settled principle of law the disability sustained by the applicant cannot be reduced to half in workman compensation cases. The disability sustained by the applicant and proved by reliable and cogent medical evidence is required to be taken into consideration. The doctor was cross-examined by the learned advocate Shri D.K.Buch. During cross-examination the Doctor has admitted that before assessing disability he has not taken X-ray nor he has advised pathological test. The doctor has admitted that the fractures were united. The doctor has admitted that he is Ortho.Surgeon and not Neuro Surgeon. The doctor has also admitted that the working area of Ortho Surgeon and Neuro Surgeon are distinct. The doctor has admitted that he cannot say whether this patient was physically mental or not. The doctor has admitted that the patient was mentally fit. The doctor deposed that he examined the patient on the applicant cannot be considered as functional disability and it should be reduced to half body-as a whole. As held above, as per settled principle of law in W.C. cases the disability cannot be reduced to half. The doctor has admitted that the patient was mentally fit. The doctor deposed that he examined the patient on the applicant cannot be considered as functional disability and it should be reduced to half body-as a whole. As held above, as per settled principle of law in W.C. cases the disability cannot be reduced to half. Thus in the present case as the applicant being a driver of heavy vehicle his functional disability is required to be considered at 70% and not 100% and total. In view of the above circumstances this Court holds that the applicant has sustained functional disability of 70%. Since the monthly income of the applicant is considered at Rs.4000-00 and as 60% of it is required to be taken into consideration in permanent disablement cases, the monthly income comes to Rs.2400=00 and as the loss of earning capacity of the applicant has been considered at 70%, therefore, it is required to be slashed down and slashing downing the said figure by 70% the loss of earning capacity comes to day on which he assessed the disability. The doctor has also admitted that he has not counted the disability of every part but has assessed the disability at 45%. The doctor has also mentioned that the fracture injury of the right hand mentioned in column No.6 was not there. The doctor has admitted that he has not taken speech test. The doctor has also admitted that he has not taken walking test of the applicant. However the doctor has denied that the disability of 45% can be reduced to half body as a whole. Thus, the doctor has falsified his own certificate Exh.26 by saying that the fracture injury to right hand mentioned in column No.6 was not there. The doctor has also mentioned in the cross-examination that before assessing disability he has not taken walking test and speech test. Thus, without taking speech test the doctor has mentioned speech disability of 15% which cannot be believed. In the cross-examination the doctor has mentioned that the patient was mentally fit. Thus, the impairment of memory and neurological disorders assessed at 10% also cannot be taken into consideration. It has also come out during cross-examination that the doctor has mentioned 45% disability of whole man. The applicant has also produced the medical certificate Exh.23/4 issued by Dr.R.B.Trivedi who is Neuro Surgeon. Thus, the impairment of memory and neurological disorders assessed at 10% also cannot be taken into consideration. It has also come out during cross-examination that the doctor has mentioned 45% disability of whole man. The applicant has also produced the medical certificate Exh.23/4 issued by Dr.R.B.Trivedi who is Neuro Surgeon. He has mentioned in the said certificate that the patient was having severe speech disturbance. However, he has not mentioned any disability. Thus, looking to the above evidence, this Court thinks it just and proper to assess the disability at 45% body as a whole.” 7. In the light of the aforesaid observations, the question arises as to whether the learned Commissioner had rightly arrived at the compensation towards the loss of the earning capacity. In my opinion, the learned Commissioner has rightly appreciated the evidence on the record to treat the disability to the extent of 45% of body as a whole, the same was required to be applied for the purpose of determination of compensation towards the loss of earning capacity. 8. Upon close perusal of the impugned order, it transpires that the learned Commissioner has taken into consideration the disability as 15% and impairment of memory & Neurological Disorder as 10% and thereafter has treated the aforesaid disability for the computation of total disability of body as a whole to the extent of 70%. The reasons assigned by the learned Commissioner is that the applicant being a driver of heavy vehicle can be said to have sustained functional disability and therefore, is required to be treated as 70%. Whereas in the later part of the order, the learned Commissioner has noted that the doctor in his cross-examination has admitted the fact that he is a Orthopedic Surgeon and while issuing the disability certificate, he has not conducted any assessment, more particular, the walking and the speech to stop the original claimant and as thus led to the conclusion that 45% body as a whole is just and proper. 9. Having held so, the learned Commissioner ought to have taken into consideration the disability to the extent of 45% body as a whole instead of 75%. Even otherwise, the learned advocate appearing for the respondent original claimant is unable to the dispute the aforesaid reasons assigned by the learned Commissioner. 10. 9. Having held so, the learned Commissioner ought to have taken into consideration the disability to the extent of 45% body as a whole instead of 75%. Even otherwise, the learned advocate appearing for the respondent original claimant is unable to the dispute the aforesaid reasons assigned by the learned Commissioner. 10. In such circumstances, the present appeal deserves consideration and the same is hereby allowed the loss of earning capacity is redetermined by applying 45% disability of body as a whole. The amount of compensation is, therefore, revised as under. COMPENSATION AS PER IMPUGNED AWARD AS PER SUBMISSION Income 4000/- 4000/- Non Fatal 60% 60% 2,400/- 2,400/- Loss of earning capacity 70% 45% 1,680/- 1,080/- Relevant Factor 169.44 169.44 2,84,659/- 1,82,995/- Refund to the Insurance Company 1,01,664/- (Rs.284659/- - Rs. 182995/-) Along with interest accrued 11. For the foregoing reasons the original claimant is held entitled of an amount of Rs.1,01,664/- along with the interest at the rate of 12% per annum from the date of the accident till its realization. 12. In view of the aforesaid fact, the remaining amount which is secured in the form of Fixed Deposit Receipts and is lying with the concerned Nationalized Bank is directed to be refunded to the appellant - Insurance Company. However, it is clarified that the interest which may have accrued during the interregnum period which was otherwise permitted to be withdrawn by the original claimant shall not be recovered by the appellant - Insurance Company. 13. With these observations, the present appeal stands disposed of in the aforesaid terms. No order as to costs.