JUDGMENT : HEMANT M. PRACHCHHAK, J. 1. Present appeal is filed by the appellant - insurance company under Section 30 of the Workmen Compensation Act, 1923 (hereinafter be referred to as “the Act”) challenging the impugned judgment and order dated 04.05.2007 passed by the learned Workmen Compensation Commissioner, Labour Court, Surat in Workmen Compensation (Non-Fatal) Case No.18 of 2003 whereby the learned Commissioner has allowed the application filed by the claimant and awarded the compensation of Rs.3,62,988.00 along with the penalty and interest. 2. Being aggrieved and dissatisfied with the impugned judgment and order of the learned Commissioner, the present first appeal is filed by the appellant – insurance company on the grounds that learned Commissioner has committed an error in assessing the percentage of disability though in the medical certificate the disability was shown at 15%, whereas, the learned Commissioner has considered the disability at 100% and also committed an error in awarding penalty. 3. Heard Ms.Lilu Bhaya, learned counsel appearing for the appellant – insurance company. Though served, the respondent – original claimant has chosen not to appear before the Court. Even the respondent was served by substitution of service despite of the same he is not remained present before the Court and, therefore, the publication in the gazette and the proposed substantial questions of law has been supplied by the learned counsel appearing for the appellant. 4. Ms.Bhaya, learned counsel appearing for the appellant has submitted the same facts which are narrated in the memo of appeal and has submitted that the learned Commissioner has exceeded his jurisdiction which is not vested with him and committed an error in assessing the disability at 100%, whereas, the disability was shown in the medical certificate at 15%. She has submitted that the learned Commissioner has considered the income of the claimant on higher side, though as per the evidence produced before the learned Commissioner the workman was receiving Rs.3500/- per month, who serving as driver sustained injury below the left leg knee and fracture on right leg knee. She has submitted that the learned Commissioner has committed serious error of law and facts in awarding 6% interest and the liability was fastened upon the appellant instead of original employer. She has submitted that the net amount of Rs.1,81,494/- as compensation is required to be paid. She has submitted that the learned Commissioner has committed serious error of law and facts in awarding 6% interest and the liability was fastened upon the appellant instead of original employer. She has submitted that the net amount of Rs.1,81,494/- as compensation is required to be paid. 4.1 Ms.Bhaya, learned counsel has emphasized upon said provision and submitted that the learned Commissioner has awarded 6% interest and liability was fastened upon the insurance company which is not just and proper. Ms.Bhaya, learned counsel has urged to allow the appeal and to quash and set aside the impugned judgment and order passed by the learned Commissioner. 5. The contention raised by Ms.Bhaya, learned counsel with regard to disability received by the claimant is concerned, in the opinion of this Court, the same is required to be considered in light of the provisions of law as it is mainly relied upon the medical certificate issued by Krupa Orthopedic Hospital wherein the disability was assessed by the doctor at 15%. In my view, while assessing the disability, the factum is required to be considered not only in the nature of injury but cause of such injury. So far as the contention with regard to disability is concerned, I am not agreement with the disability considered by the learned Commissioner. 5.2 The contention with regard to calculating compensation on the basis of wages as mentioned under Section 5 of the Act, I am of the opinion that it is required to be considered and the appropriate modification is required to be made in the impugned award. So far as the contention with regard to the interest is concerned, it is not res integra. So far as the liability to pay the interest of the insurance company is concerned, it is not liable on the part of the insurance company, but it is liable on the part of the insured and he has to pay the interest at the rate of 6% from the date of award till final realization of the award. 5.3 So far as the liability to pay interest is concerned, in view of the decision of the Hon’ble Supreme Court in the case of New India Assurance Company Limited Vs. Harshadbhai Amrutbhai Modhiya , (2006) 5 SCC 192 , the said liability is of respondent No.2 and, therefore, the impugned judgment and award is modified to the extent. 5.3 So far as the liability to pay interest is concerned, in view of the decision of the Hon’ble Supreme Court in the case of New India Assurance Company Limited Vs. Harshadbhai Amrutbhai Modhiya , (2006) 5 SCC 192 , the said liability is of respondent No.2 and, therefore, the impugned judgment and award is modified to the extent. 5.4 So far as the injury is concerned, as per the medical certificate issued by Krupa Orthopedic Hospital, the disability was assessed by the doctor at 15%, whereas the learned Commissioner has considered 100% disablement. The claimant was aged about 33 years at the time of accident and he sustained fracture injury and no permanent disablement in a nature. Therefore, the aspect of disability is concerned, the learned Commissioner has assessed at 100% disability, however, at the best he has to consider at 50% as the claimant was the driver but the injury which does not fall under the schedule. In my view, while assessing the disability, the factum is required to be considered not only in the nature of injury but cause of such injury and hence I am not agreement with the disability considered by the learned Commissioner. 6. In the case of Harshdbhai Amrutbhai Modhiya (supra), the Hon’ble Supreme Court has held and observed in paras – 9, 10, 11, 12, 13, 14 and 24 as under:- “ 9. Section 3 of the Act provides for the employer's liability to pay compensation in the event a workman suffers personal injury by an accident arising out of and in the course of his employment. The amount of compensation is required to be calculated in accordance with the provisions contained therein. 10. Section 4 of the Act provides for the mode and manner in which the amount of compensation is to be calculated. While so calculating, the Workmen's Compensation Court is required to take into consideration the factors enumerated therein. 11. Section 5 provides for the method of calculating wages. 12. Section 8 stipulates the manner in which the amount of compensation would be distributed. Sub-sec. (4) of Sec. 8 reads as under: "4) On the deposit of any money under sub-sec. While so calculating, the Workmen's Compensation Court is required to take into consideration the factors enumerated therein. 11. Section 5 provides for the method of calculating wages. 12. Section 8 stipulates the manner in which the amount of compensation would be distributed. Sub-sec. (4) of Sec. 8 reads as under: "4) On the deposit of any money under sub-sec. (1), as compensation in respect of a deceased workman the Commissioner shall, if he thinks necessary, cause notice to be published or to be served on each dependant in such manner as he thinks fit, calling upon the dependents to appear before him on such date as he may fix for determining the distribution of the compensation. If the Commissioner is satisfied after any inquiry which he may deem necessary, that no dependant exists, he shall repay the balance of the money to the employer by whom it was paid. The Commissioner shall, on application by the employer, furnish a statement showing in detail all disbursements made." 13. Section 12 of the Act provides for the mode and manner of payment of compensation by a principal employer and/ or his contractor. Section 17 of the Act nullifies contracting out in the following terms: "Contracting out. Any contract or agreement whether made before or after the commencement of this Act, whereby a workman relinquishes any right o24. Section 17 of the Workmen's Compensation Act voids only a contract or agreement whereby a workman relinquishes any right of compensation from the employer for personal injury arising out of or in the course of the employment and insofar as it purports to remove or reduce the liability of any person to pay compensation under the Act. As my learned brother has noticed, in the Workmen's Compensation Act, there are no provisions corresponding to those in the Motor Vehicles Act, insisting on the insurer covering the entire liability arising out of an award towards compensation to a third party arising out of a motor accident. It is not brought to our notice that there is any other law enacted which stands in the way of an insurance company and the insured entering into a contract confining the obligation of the insurance company to indemnify to a particular head or to a particular amount when it relates to a claim for compensation to a third party arising under the Workmen's Compensation Act. In this situation, the obligation of the insurance company clearly stands limited and the relevant proviso providing for exclusion of liability for interest or penalty has to be given effect to. Unlike the scheme of the Motor Vehicles Act the Workmen's Compensation Act, does not confer a right on the claimant for compensation under that Act to claim the payment of compensation in its entirety from the insurer himself. The entitlement of the claimant under the Workmen's Compensation Act is to claim the compensation from the employer. As between the employer and the insurer, the rights and obligations would depend upon the terms of the insurance contract. Construing the contract involved here it is clear that the insurer has specifically excluded any liability for interest or penalty under the Workmen's Compensation Act and confined its liability to indemnify the employer only against the amount of compensation ordered to be paid under the Workmen's Compensation Act. The High Court was, therefore, not correct in holding that the appellant insurance company, is also liable to pay the interest on the amount of compensation awarded by the Commissioner. The workman has to recover it from the employer. compensation from the employer for personal injury arising out of or in the course of the employment, shall be null and void in so far as it purports to remove or reduce the liability of any person to pay compensation under this Act." 14. By reason of the provisions of the Act, an employer is not statutorily liable to enter into a contract of insurance. Where, however, a contract of insurance is entered into by and between the employer and the insurer, the insurer shall be liable to indemnify the employer. The insurer, however, unlike under the provisions of the Motor Vehicles Act does not have a statutory liability. Section 17 of the Act does not provide for any restriction in the matter of contracting out by the employer vis-a-vis the insurer. 24. Section 17 of the Workmen's Compensation Act voids only a contract or agreement whereby a workman relinquishes any right of compensation from the employer for personal injury arising out of or in the course of the employment and insofar as it purports to remove or reduce the liability of any person to pay compensation under the Act. 24. Section 17 of the Workmen's Compensation Act voids only a contract or agreement whereby a workman relinquishes any right of compensation from the employer for personal injury arising out of or in the course of the employment and insofar as it purports to remove or reduce the liability of any person to pay compensation under the Act. As my learned brother has noticed, in the Workmen's Compensation Act, there are no provisions corresponding to those in the Motor Vehicles Act, insisting on the insurer covering the entire liability arising out of an award towards compensation to a third party arising out of a motor accident. It is not brought to our notice that there is any other law enacted which stands in the way of an insurance company and the insured entering into a contract confining the obligation of the insurance company to indemnify to a particular head or to a particular amount when it relates to a claim for compensation to a third party arising under the Workmen's Compensation Act. In this situation, the obligation of the insurance company clearly stands limited and the relevant proviso providing for exclusion of liability for interest or penalty has to be given effect to. Unlike the scheme of the Motor Vehicles Act the Workmen's Compensation Act, does not confer a right on the claimant for compensation under that Act to claim the payment of compensation in its entirety from the insurer himself. The entitlement of the claimant under the Workmen's Compensation Act is to claim the compensation from the employer. As between the employer and the insurer, the rights and obligations would depend upon the terms of the insurance contract. Construing the contract involved here it is clear that the insurer has specifically excluded any liability for interest or penalty under the Workmen's Compensation Act and confined its liability to indemnify the employer only against the amount of compensation ordered to be paid under the Workmen's Compensation Act. The High Court was, therefore, not correct in holding that the appellant insurance company, is also liable to pay the interest on the amount of compensation awarded by the Commissioner. The workman has to recover it from the employer.” 7. The High Court was, therefore, not correct in holding that the appellant insurance company, is also liable to pay the interest on the amount of compensation awarded by the Commissioner. The workman has to recover it from the employer.” 7. In view of the aforesaid facts and circumstances of the case and the decision cited at the Bar and submissions, I am of the opinion that the learned Commissioner has committed an error of law and facts in considering the evidence produced by the respondent with regard to disability and if this Court considers as per the evidence produced by the respondent then 50% disablement has been considered by the Krupa Orthopedic Hospital and, therefore, the Court considers 50% disablement. 8. The contention with regard to the penalty raised by the learned counsel appearing for the appellant is concerned, considering the peculiar facts that the amount of penalty is only 5% of the total amount i.e. Rs.3,63,988 x 50% = Rs.1,81,494 x 5% = Rs.9074/- as penalty amount. The issue with regard to the penalty is concerned, the same is squarely covered by the various decisions of the Hon’ble Supreme Court as well as this Court and, therefore, the learned counsel for the appellant has waived the penalty on the ground of smallness of the amount. 9. Since the order of paying 5% penalty and the amount involved is very less, considering the smallness of the amount, learned counsel appearing for the appellant has not agitated further with regard to liability to pay the penalty is concerned. Considering the smallness of amount, this Court deems it fit not to exercise jurisdiction under the Act. Accordingly, only on the ground of smallness of amount with a further clarification that this may not be considered as precedent in other claim petitions arising out of the same accident. 10. In view of the above, the appeal is allowed in part. Registry is directed to transmit back the record and proceedings to the concerned Court forthwith. Pending civil application/s shall stand disposed of accordingly. Interim relief, if any, granted earlier stands vacated forthwith.