JUDGMENT : Satyen Vaidya, J. Both these appeals are being decided by common judgment as these arise out of the same award. 2. FAO No.42 of 2018 has been filed by the insurer, whereas FAO No. 385 of 2019 has been filed by the insured against the award dated 02.08.2017 passed by learned Commissioner Employees Compensation (for short “Commissioner”) in W.C. Petition No.RBT 14-2 of 2013/11, whereby respondents No.1 and 2 (for short “claimants”) have been awarded compensation in the sum of Rs.8,25,350.4 paise out of which principal amount of Rs.4,48,560/- has been ordered to be paid by the insured and interest amount of Rs.3,76,790.4 paise has been ordered to be paid by the insurer. 3. The claimants are the legal heirs of the original petitioner Kailash Kumar (now deceased). The original petitioner filed claim petition under Section 10 of the Employees Compensation Act (for short “Act”) against his employer (insured) and the insurer for grant of compensation on account of injuries suffered by him during the course of his employment with the insured. It was alleged that the original petitioner was employed as a driver by the insured to drive bus bearing registration No. HP-63–0369. On 19.08.2010 at about 3.40 P.M. near place Chhaila, Tehsil Theog, District Shimla, H.P., bus No. HP-63–0369 being driven by the original petitioner, met with an accident resulting in multiple bodily injuries to the original petitioner. It was also averred in the claim petition that the original petitioner was undergoing treatment in IGMC Shimla till the date of filing of petition. As per the original petitioner, he was advised surgery of neck bone and had already spent about Rs.1,50,000/- on the treatment. 4. The original petitioner claimed to be earning a sum of Rs.11,000/- per month as salary from the insured besides usual allowances. The age of original petitioner was stated to be 39 years at the time of accident. 5. The original petitioner made further averments that after the accident he was unable to earn his livelihood as he was bed ridden and under treatment. 6. During the pendency of the claim petition before the learned Commissioner, the original petitioner died in the year 2016 and thereafter was substituted by his legal heirs i.e. claimants. 7. In his reply filed by the insured before the learned Commissioner, it was admitted that the original petitioner was employed as driver by the insured. 6. During the pendency of the claim petition before the learned Commissioner, the original petitioner died in the year 2016 and thereafter was substituted by his legal heirs i.e. claimants. 7. In his reply filed by the insured before the learned Commissioner, it was admitted that the original petitioner was employed as driver by the insured. The factum of accident and consequential injuries sustained by the original petitioner was admitted. The income as claimed was also not denied. It was, however, denied that the petitioner had spent Rs.1,50,000/- on treatment. As per the insured, he had already rendered financial help to the original petitioner. The amount of compensation claimed by the original petitioner was alleged to be exorbitant. It was disclosed that Bus Number HP-63-0369 was insured by the insurer at the time of accident. 8. The insurer contested the claim petition on the grounds that the petition was not maintainable; there was violation of terms and conditions of the policy of insurance and the driver of the vehicle was not holding valid and effective driving licence. Collusion between the claimants and the insured was also alleged. The allegations of original petitioner having suffered disablement and having spent Rs.1,50,000/- on treatment were also denied. 9. Learned Commissioner framed the following issues:- 1. Whether the injuries sustained by petitioner is caused by accident arising out and in the course of his employment, as alleged?OPP 2. Whether the petitioner is entitled for compensation to the tune of Rs.10,00,000/- as prayed for?OPP 3. Whether the petition is not maintainable in the present form, as alleged?OPR. 4. Whether the petitioner was not holding valid and effective driving licence at the time of driving the vehicle, as alleged? OPR-2. 5. Whether the petition is bad for non compliance of Section 10 of the Employees Compensation Act, as alleged?OPR-2. 6. Whether the petition is bad for lacks of better particulars and there was breach of terms and conditions of the policy, as alleged?OPR-2. 7. Relief. 10. Issue Nos. 1 and 2 were decided in affirmative whereas issue Nos. 3 to 6 were decided in negative and the Award, as noticed above, was passed. 11. Learned Commissioner found the following facts as proved: (a) The original petitioner was employed as a driver by the insured to drive bus No. HP-63-0369. 7. Relief. 10. Issue Nos. 1 and 2 were decided in affirmative whereas issue Nos. 3 to 6 were decided in negative and the Award, as noticed above, was passed. 11. Learned Commissioner found the following facts as proved: (a) The original petitioner was employed as a driver by the insured to drive bus No. HP-63-0369. (b) Bus No. HP-63-0369 was insured by the insurer vide policy of insurance Ex.RW1/B at the time of accident. (c) Original petitioner held a valid driving licence at the time of accident, exhibited on record as Ex.AW2/C. (d) Original petitioner was earning salary of Rs.9,000/- per month at the time of accident. (e) The age of petitioner at the time of accident was 39 years. 12. Learned Commissioner though held the original petitioner to have suffered 15% permanent partial disablement by placing reliance on the statement of AW-4 Dr. Ravinder Mokta and disability certificate Ex.AW4/A, but held the original petitioner to have suffered loss of earning capacity to the tune of 50% on the reason that the original petitioner was not able to drive the heavy motor vehicle after the accident and could drive only the light motor vehicle. Learned Commissioner further calculated the amount of compensation in terms of Section 4(1)(b) of the Act. Since, the monthly income of original petitioner was held Rs.9000/-, it was capped at Rs.8000/- in terms of the provisions of the Act. 50% of Rs.8000/- i.e. Rs.4000/- was taken as base figure. Thereafter 60% of Rs.4000/- was considered as dependency and by multiplying the same with the relevant factor of 186.90, compensation of Rs.4,48,560/- was held payable. In addition, interest @12% was held payable on Rs.4,48,560/- w.e.f. 19.09.2010 till the date of award, calculated at Rs.3,76,690.4 paise. 13. The appeal of the insurer i.e. FAO No. 42 of 2018 has been admitted on the following substantial questions of law:- 1. Whether right to sue survive in favour of the legal heirs of the deceased when the claim petition was filed by the deceased for compensation on account of personal injuries suffered by him and those injuries do not have any nexus with the death? 2. Whether the learned commissioner below has erred in calculating the compensation as per section 4(1)(b) of the Act instead of section 4(1) (c) (ii) of the Act and its effect? 3. 2. Whether the learned commissioner below has erred in calculating the compensation as per section 4(1)(b) of the Act instead of section 4(1) (c) (ii) of the Act and its effect? 3. Whether the appellant being insurance Company is liable to pay interest on the insured amount under Employees Compensation Act? 14. The appeal of the insured i.e. FAO No. 385 of 2019 has been admitted on following substantial questions of law:- 1. Whether the learned Commissioner below gravely erred by awarding the compensation against the appellant/owner when there is no fundamental breach on the part of owner of vehicle and own damage claim of the vehicle in question stands paid by respondent No.3/Insurance Company and claim, if any, is to paid by respondent No.3 as Insurance Company was informed well in time alongwith documents regarding the accident? 2. Whether the learned Commissioner under the Employee’s Workmen Compensation Act gravely erred by exercising the jurisdiction by directing the appellant/owner to pay compensation to the petitioner despite the fact that there is no fundamental breach and violation on the part of the owner of vehicle in question? 15. I have heard learned counsel for the parties and have also gone through the record. 16.1 As regards substantial question of law No.1 in FAO No. 42 of 2018, it is held that the right to sue survived in favour of the claimants after the death of original petitioner, in respect of liability of the insured and the insurer to pay compensation under the Act on account of injuries suffered by the original petitioner during the course of his employment under the insured. 16.1. The Act makes the employer liable to compensate the employee in case of personal injury caused to the employee by accident arising out of and in the course of his employment. 16.2. Since, the original petitioner had filed the claim petition under the Act on failure of employer to fulfill his obligation, merely due to the death of original petitioner during the pendency of claim petition, the obligation of the employer under the act did not cease. In such event, the compensation awardable to the original petitioner, after his death would be part of his estate. Thus, the right to use survive in favour of the claimants, who are none else than the wive and minor child of the original petitioner. 17. In such event, the compensation awardable to the original petitioner, after his death would be part of his estate. Thus, the right to use survive in favour of the claimants, who are none else than the wive and minor child of the original petitioner. 17. As regards second substantial question of law in FAO No.42 of 2018, for the reasons detailed hereafter, it is held that the learned Commissioner has erred in calculating the compensation as per the Section 4(1)(b) of the Act instead of Section 4(1)(c) of the Act. 17.1. Section 4(1)(b) of the Act deals with the amount of compensation where permanent total disablement results from the injury. On the other hand, Section 4(1)(c) of the Act deals with payment of compensation where permanent partial disablement results from the injury. 17.2. Learned Commissioner has placed reliance on disability certificate EX.AW4/A to hold the disablement of the original petitioner at 15%. 17.3. Partial disablement and total disablement have been denied in Section 2(g) and 2(l) of the Act as under:- “2(g). “Partial disablement” means, where the disablement is of a temporary nature, such disablement as reduces the earning capacity of employee in any employment in which he was engaged at the time of the accident resulting in the disablement, and, where the disablement is of a permanent nature, such disablement as reduces his earning capacity is every employment which he was capable of undertaking at that time; provided that every injury specified in Part II of Schedule 1 shall be deemed to result in permanent partial disablement; 2(l) “total disablement” means such disablement, whether of a temporary or permanent nature, as incapacitates an employee for all work which he was capable of performing at the time of accident resulting in such disablement.” 17.4. Learned counsel for the insurer/appellant in FAO No. 42 of 2018 has contended that as a result of wrong application of Section 4(1)(b) to the facts of the case, learned Commissioner also erred in assessing the functional disability of the original petitioner at 50% by ignoring the provision of Section 4(1)(c)(ii) of the Act. He has submitted that the injury suffered by the original petitioner admittedly was not specified in Schedule-I. In such event, loss of earning capacity was to be assessed by a qualified medical practitioner. The only evidence in this regard was the statement of AW-4 Dr. He has submitted that the injury suffered by the original petitioner admittedly was not specified in Schedule-I. In such event, loss of earning capacity was to be assessed by a qualified medical practitioner. The only evidence in this regard was the statement of AW-4 Dr. Ravinder Mokta and the certificate of disablement, Ex.AW4/A issued by the medical board. As per the learned counsel for the appellant/insurer, the assessment of loss of earning capacity of original petitioner could not be made out from the deposition of AW-4 Dr. Ravinder Mokta. 17.5. From the thorough perusal of the statement of AW- 4 Dr. Rakesh Mokta, there is nothing to suggest that he had assessed the loss of earning capacity of the original petitioner. The only assessment was for disablement. This witness nowhere stated that the original petitioner was completely and permanently disabled from driving the vehicle. Rather, it was stated that the original petitioner could drive light motor vehicle. The inference that can be drawn is that the original petitioner could continue with his profession of driving with light motor vehicle and for such reason it cannot be said that the earning capacity of the original petitioner had been reduced to 50% merely because he had some difficulty in driving the heavy motor vehicle. There is no material on record to suggest that the earning of a person driving light motor vehicle would have reduced by 50% as compared to the person driving heavy motor vehicle. 17.6. It also cannot remain unnoticed that the original petitioner had failed to get himself treated as per the medical advice. As deposed by AW-3 Dr. Manoj Thakur, the original petitioner was advised to undergo neck surgery, which he did not avail. The said witness also deposed that the original petitioner was entitled to the benefit of a claim for free treatment of poor person and though the expense of surgery was to be approximately Rs.40,000/-, the same would have been free of cost for the original petitioner. It has also not been established that the original petitioner eventually died due to the injuries suffered by him in the accident. In this back drop, it has remained totally unexplained as to why the original petitioner did not adhere to the medical advice. For such reason also the claimants cannot derive any benefit of getting more compensation than the disablement proved on record. 17.7. In this back drop, it has remained totally unexplained as to why the original petitioner did not adhere to the medical advice. For such reason also the claimants cannot derive any benefit of getting more compensation than the disablement proved on record. 17.7. Applying the formula prescribed in Section 4(1)(c) of the Act, the income of the original petitioner is to be taken as Rs.8000/-. As per the sub clause (i) of the said provision 60% of the income is to be applied which in the instant case is calculated at Rs.4800/-. The disablement has been proved to the extent of 15% and thus the commensurate loss of earning capacity, in the absence of any other assessment by medical practitioner is to be taken at 15%, which comes out to Rs.720/- per month. By applying the relevant factor of 186.90, the total payable compensation to the claimants will be Rs.1,34,568/- ( i.e. Rs.720x186.90). 17.8. Claimants are also entitled to simple interest @ of 12% per annum on the compensation amount of Rs.1,34,568/- w.e.f. 19.09.2010 in terms of Section 4A(3)(a) of the Act. 18. Substantial question of law No.3 in FAO No.42 of 2018 along with substantial questions of law in FAO No.385 of 2019 are being considered together due to involvement of identical questions of facts and law. 18.1. The findings of fact that the vehicle in question was insured at the time of accident needs no interference as the same cannot be said to be perverse. The insurer has not denied the existence of policy of insurance in respect of vehicle No. HP-63-0369 issued by it with validity on the date of accident. In order to avoid its liability, the insured has not proved any violation of terms and conditions of the policy. 18.2. Another findings of fact rendered by the learned Commissioner that the original petitioner was having a valid driving licence at the time of accident has also not been shown to be against the record or perverse. 18.3. Thus, when there existed a valid policy of insurance and the insurer was unable to prove any breach of policy to avoid liability, learned Commissioner has clearly erred in fastening the liability to pay the amount of compensation on the insured. 18.3. Thus, when there existed a valid policy of insurance and the insurer was unable to prove any breach of policy to avoid liability, learned Commissioner has clearly erred in fastening the liability to pay the amount of compensation on the insured. The insurer having failed to prove the breach of policy of insurance is liable to indemnify the insured by paying the entire amount of compensation along with interest @12% per annum w.e.f. 19.09.2020 19. The substantial questions of law are accordingly answered. 20. Accordingly, both the appeals are partially allowed and the impugned award is modified to the extent as noticed above. 21. Appeals are accordingly disposed of so also pending miscellaneous application(s), if any.