JUDGMENT : 1. Heard learned advocate Mr.Hiren Modi for the appellant – original claimant and learned advocate Mr.Gadhia for respondent No.2. 2. By way of the present First Appeal, the Appellant has prayed for the following reliefs:- 5(A) Your Lordship may be pleased to admit this First Appeal. (B) Your Lordship may be pleased to allow the First Appeal by modifying the impugned order passed dated 12.03.2009 by the Workman Compensation Commissioner, Surat in Workman Compensation Case No.126 of 2004. And thereby allows the appeal and enhance the compensation upto the tune Rs.4,61,136 with 50% penalty and 12% interest from the date of accident and direct the respondent to deposit the amount. (C) To grant any other and further relief/s in the interest of justice. 3. The brief facts narrated in the present appeal are as under:- 3.1 The appellant was working with the respondent No.1 as a driver. The monthly salary of the appellant was Rs.4,500/- and also receiving Rs.100 per day as allowance. On 22.05.2004, during the course of employment, the appellant was plying Truck bearing No.GJ-5-T-2011, at that time, other truck bearing No.GJ-12-U-7119 came from opposite side in rash and negligent manner, dashed with the truck of appellant. Resultantly, he received serious injuries on his right leg and on the head. 3.2 In the accident, the appellant sustained permanent disability of 40%. A claim of compensation for Rs.4,61,136/- alongwith the interest and penalty under the provisions of the Workmen’s Compensation Act, 1923 was filed before the Workman Compensation Commissioner, Surat which was decided on 12.03.2009. 4. Learned advocate for the appellant has submitted that the appellant is not pressing for penalty amount since the respondent No.1 has chosen not to appear in the present First Appeal, though served. 5. The limited submission on behalf of the appellant is with regard to the loss of earning capacity and interest awarded by the learned trial Court and for rest of the challenge, appellant does not press for those contentions. Learned advocate for the appellant submitted that the appellant was working as a driver with the respondent No.1. On 12.05.2002, while performing his duties as a driver and while plying truck bearing Truck No.GJ-5-T-2011, collided with another truck bearing registration No.GJ-12-U-7119, near Chikhali, Surat. Resultantly, the appellant sustained serious injuries on his right leg and on the head. Due to the accident, the appellant sustained permanent disability of 40%. On 12.05.2002, while performing his duties as a driver and while plying truck bearing Truck No.GJ-5-T-2011, collided with another truck bearing registration No.GJ-12-U-7119, near Chikhali, Surat. Resultantly, the appellant sustained serious injuries on his right leg and on the head. Due to the accident, the appellant sustained permanent disability of 40%. It is further submitted that though the injuries sustained during the course of employment, respondent No.1, did not pay compensation within stipulated time. Thus, the appellant constrained to file the claim petition. 6. Lenard advocate for the appellant has submitted that while deciding the issue of earning capacity under the provisions of law, the learned trial Court has not properly considered the aspect that the appellant was serving as a driver. As per the evidence of the Doctor, the appellant has suffered 40% disability and could not drive the truck. Resultantly, the appellant has lost his service. The further submission canvassed by the learned advocate for the appellant, is that the learned Labour Court has failed to consider the provisions of Section 4A(3)(a) of the Workmen’s Compensation Act, 1923 which clearly envisages the minimum rate of interest to be awarded at 12% per annum. However, the learned Labour Court has failed to appreciate such legal provisions and awarded only 9% interest, whereby the learned trial Court has committed grave error of law. 7. Learned advocate for the appellant has placed reliance on following judgments in support of his submissions:- (i) Shaikh Osmanali Chous Vs. New India Assurance Co.Ltd. And another reported in (2018) ACJ 1016. (ii) Chanappa Nagappa Muchalagoda Vs. Divisional Manager, New India Assurance reported in (2020) ACJ 704. 8. Learned advocate for the appellant has submitted that at the time of accident, the appellant was aged about 37 years and was getting wages of Rs.4,000/- per month and suffered permanent disability of 70%. As per Section 4A(3)(a) of the Workmen’s Compensation Act, 60% of wages is to be considered in disability cases. Hence, the computation of compensation would be Rs.4000 x 60% = Rs.2,400/- p.m. 8.1 He further submitted that compensation with regard to 100% disability of driving skills would come to Rs.2,400 x 192.14 (Relevant Factor) = Rs.4,61,136/- and the functional disability is considered at 70%, therefore, compensation would be Rs.4,61,136 x 70%= Rs.3,22,795/-. Hence, enhancement in the present case would come to Rs.3,22,799/- – Rs.2,30,568/- = Rs.92,231/-. Hence, enhancement in the present case would come to Rs.3,22,799/- – Rs.2,30,568/- = Rs.92,231/-. 8.2 It is further submitted that as per the Employee’s Compensation Act, the Insurance Company shall deposit the above amount of Rs.92,231/- with 12% interest and also pay 3% differential interest on awarded amount earlier deposited i.e. Rs.2,30,568. 9. Per contra, learned advocate for respondent No.2 has vehemently submitted that the learned Labour Court has rightly considered the disability and the loss of earning capacity and awarded just and reasonable compensation. It is further submitted that the rate of interest which has been awarded by the learned Labour Court, is reasonable as the said rate was prevailing during the relevant period. It is further submitted that the Doctor, who assessed the disability, has clearly admitted in the Cross-examination that he cannot say whether the appellant could drive vehicle because of such disability. In view of this fact with regard to the compensation on disability aspect, the Award is just and reasonable. There is nothing on record to show that appellant has lost his earning capacity. 10. This Court has heard learned advocates for the parties and perused the impugned judgment and award. The appellant was an employee and during the course of employment, he met with an accident on 22.05.2004 and he sustained serious injuries on his right leg and on the head. The disability Certificate issued by the doctor assessed permanent disability at 40%. The nature of injury and the nature of work are the relevant factors for deciding the compensation. 11. In the present case, it appears from the record that the appellant has sustained injuries and due to injuries his lost earning capacity. Considering the nature of work, which was undertaken by the appellant at the time of accident, the base for awarding just and reasonable compensation. Since the appellant is a driver by profession and looking to the injury and the percentage of disability, this Court finds that the appellant now would not be able to drive truck in future. There is nothing contrary on record regarding loss of earning capacity. The learned Labour Court has considered the disability certificate issued by the Doctor and has clearly held that the appellant has sustained serious injuries which has resulted into the loss of earning capacity. There is nothing contrary on record regarding loss of earning capacity. The learned Labour Court has considered the disability certificate issued by the Doctor and has clearly held that the appellant has sustained serious injuries which has resulted into the loss of earning capacity. However, learned Labour Court assessed only 50% of loss of earning capacity which in opinion of this Court is less than what appellant would have entitled to. 12. This Court is of the view that instead of assessing 50% of loss of earning capacity, 70% loss of earning capacity is assessed, the purpose of just and reasonable compensation would be served. I have assessed loss of earning capacity of 70% instead of 50%. 12.1 The next question is with regard to the rate of interest being awarded by the learned trial Court. There are no findings as to why the learned Labour Court has granted 9% interest, whereas the statutory rate of interest is being of 12% as contemplated under Section 4A of the Act. Thus, applying the provisions of law as contemplated under Section 4A of the Act, the rate of interest would be 12% instead of 9% from the date of application till realization. 12.2 Thus, the modified calculation of compensation is as follows:- Monthly Salary of Rs.4,000 x 60% disability = Rs.2,400/- p.m. Rs.2,400 x 192.14 (Relevant Factor) = Rs.4,61,136/- (considering 100% disability of driving skills.) Rs.4,61,136 x 70%= Rs.3,22,795/- (considering functional disability at 70%). Rs.3,22,799 – Rs.2,30,568/- (earlier awarded amount) = Rs.92,231/- (enhanced amount) 13. Thus, in the totality of the facts and circumstances, the First Appeal is partly allowed. The impugned judgment and order dated 12.03.2009 passed by the Workman Compensation Commissioner, Surat in Workman Compensation (Non-Fatal) Case No.126 of 2004 is hereby modified to the aforesaid extent that Respondent No.2 is directed to pay enhanced amount of Rs.92,231/- with interest @ 12 % from the date of application till the realization within a period of six weeks form the date of receipt of the order. Further the Insurance Company shall pay 3% differential interest on earlier awarded amount Rs.2,30,568/- 14. The entire awarded amount to be disbursed in favour of the Original claimant after proper identification and verification.