( 1 ) THIS appeal arises from the judgment under Section 30 (1) of the Workmen's Compensation Act, for short, 'the act' from the judgment and award dated 29. 7. 1998 delivered by the workmen's compensation commissioner (sub-divn. 1), Bangalore in wca/cr/5/97 awarding compensation to the injured claimant of the sum of Rs. 2,54,148 with interest at the rate of 12 per cent per annum.

( 2 ) THE commissioner accepted the claimant's case that he was getting monthly salary of Rs. 1,800 and bhatta of Rs. 50 per day, that is, Rs. 1,500 per month and thus in total he was getting wages to the tune of Rs. 3,300. It also found that the age of the claimant at the time of accident was 28 years. The commissioner also found that the claimant was working as a workman under the owner of the vehicle, namely, respondent No. 2 before it, that is before the workmen's compensation commissioner, who is respondent No. 1 in the memo of appeal. In other words commissioner held that the present respondent No. 2 in the appeal was an employee of respondent No. 1, the owner of the vehicle. It had relied on the evidence given by the claimant including two documents filed and observed that no evidence has been led or produced by the owner of the vehicle to prove or show otherwise, i. e. , to the contrary.

( 3 ) THE commissioner found the claimant to be entitled to award of compensation. The workmen's compensation commissioner has found that the income of the. Claimant comes to Rs. 3,300, it opined that for the purpose of Section 4 and calculation of compensation in view of explanation ii to Section 4 of Workmen's Compensation Act, the monthly wages of the claimant shall be deemed to be Rs. 2,000 only, in view of substitution of the figure Rs. 2,000 for figure Rs. 1,000 in the explanation ii of Section 4 by the workmen's compensation (Amendment) Act, 1995, for short, 'the amending act of 1995'. On that basis applying the multiplier the commissioner has assessed and awarded the amount of compensation to be Rs. 2,54,148 with interest of 12 per cent thereon vide the award dated 29. 7. 1998.

( 4 ) THE insurance company has come up in appeal before this court under Section 30 of the Workmen's Compensation Act.

( 5 ) I have heard Mr. M. v. poonacha, learned counsel for the appellant and Mr. K. t. gurudeva prasad, learned counsel for the respondents.

( 6 ) ON behalf of the appellant Mr. Poonacha urged that figure of Rs. 2,000 zas been substituted in explanation ii to Section 4 of the act by the amending Act, 1995. Learned counsel for the appellant submitted that the amending Act, 1995 received the assent of the president and came in force, no doubt with effect from 19. 8. 95, but the relevant Provisions came into effect from 15. 9. 1995. Learned counsel for the appellant submitted that on the date of occurrence, namely, 22. 2. 1995 figure of Rs. 1,000 was mentioned in explanation ii to Section 4 and not Rs. 2,000. He further submitted that the amendment is not retrospective and could not govern the case in question and the calculation of compensation could be made by deeming the salary of the claimant to be Rs. 1,000 only. Learned counsel for the appellant submitted that, thus the workmen's compensation commissioner committed a substantial error of law and jurisdiction in awarding compensation by deeming the income to be Rs. 2,000 as such the amount of compensation calculated and awarded by the workmen's compensation commissioner is not according to law and the award suffers from the said error and the award needs interference and is to be set aside or modified.

( 7 ) ON behalf of the respondent No. 2 Mr. K. t. gurudeva prasad, learned counsel firstly raised a preliminary objection and submitted that the case being one of motor accident, the scope of defence of insurance company is limited and circumscribed by Section 149 (2) of the Motor Vehicles Act, 1988, for short, 'the m. v. act of 1988' and no defence, which is available to the insured, is available