The liability of the insurer under section 96 of the Motor Vehicles Act is incidental and ancillary to the primary liability of the employer, which is triable exclusively by the Commissioner under the Workmen's Compensation Act. The Commissioner has the power to determine and enforce such incidental liability against strangers, including the insurer.

V.S. DESUPANDE J.- The appellant was employed as a driver by respondent No.1 on his motor-lorry No. MRS 8847. While this lorry was on its way from Bombay to Sholapur on July 3, 1968, it met with an accident. Another lorry MHO 7464, collided with this lorry and the appellant got injuries and was admitted as an indoor patient in J. J. Hospital. His lett leg was required to be amputated up to the knee. The Hospital Authorities assessed his permanent partial disability at 40%. The appellant consulted one Doctor viz. Dr. Katrak, according to whom the permanent partial disability was to the extent of 70%. He found that the amputation was made in a defective manner.

2. The appellant then made an application under section 3 of the Workmen's Compensation Act of 1923 (hereinafter referred to as the Workmen's Compensation Act). He claimed compensation of Rs. 12,600 therein alleging his permanent disability to be total. The employer respondent No. 1 did not contest the claim. At the instance of the claimant, a notice was issued under section 96 (2) of the Motor Vehicles Act of 1939 (hereinafter referred to as the Motor Vehicles Act) to the M/s. Howrah Insurance Co. Ltd., with whom the lorry was insured by his employer, in compliance with the statutory obligation to that effect, under sections 94 and 95 of the Motor Vehicles Act. The Insurance Co. did not care to appear or seek to be impleaded as party for getting its defences tried. At the trial appellant examined himself and said Dr. Katrak in support of his claim. None was examined in rebuttal.

3. The Additional Commissioner, who tried the claim, found appellant's permanent disability to be not total, but only to the extent of 70% and awarded a total compensation of Rs. 9, 120 inclusive of costs of Rs. 150 and penalty of Rs. 150, in terms of the Schedule (2) of the said Act, in accordance with his wage group. His claim to make the Insurance Co. liable in terms of section 96 (1) of the Act, however, was rejected due to his failure to produce the Insurance Policy. The appellant challenge this order in this appeal both as to the quantum and also as to the liability of the Insurance Company. He also claims interest in terms of section 4 (a) of the Workmen's Compensation Act.

4. Coming first to the question of quantum, Mr. Solkar the learned advocate appearing for the appellant, contends that, the defect in the leg caused by the required amputation, disabled him from getting any work in the market which the appellant could, have got on the date of the accident. It is true that the medical certificate or the evidence of Doctor, as to the quantum of disability, cannot be conclusive. The Commissioner trying the claim also can come to his own conclusion on other evidence, if any, that permanent disability caused by the accident is more than what the medical evidence indicates. The amputation of the left leg up to the knee or any defect therein by itself cannot lead anyone to the conclusion that the claimant would not be able to do any work whatsoever, which he could have otherwise done on the date of the accident. We may accept Mr. Solkar's contention, based on the judgment of this Court reported in the case of Ahmed Abdul v. H. K. Sehgal1, and on the ratio of the House of Lords Judgment, in the case of Ball (Pauper) ... and William Hunt & Sons Limited, 1912 A. C. page 496, that 'incapacity for work' also means inability to get work done, due to any physical defect, which makes his work unsaleable in any market reasonably accessible to him. All that the claimant has in this case stated, is that he was unable to do any work and has not succeeded in securing any work. This bald statement does not amount to proving that his defect has made his work unsaleable in the market. In this view of the matter, the finding of the Commissioner as to the assessment of the extent of the permanent disability as also to the compensation, quantified therefor, does not call for any interference.

5. The Com