H.K. RATHOD, J.

1. Heard learned advocate Ms. Sejal K. Mandavia for appellant Corporation.

2. This appeal is preferred u/s 30 of the Workmen's Compensation Act, 1923. The challenge amount is Rs. 45,927. The appellant has challenged judgment and order passed by W.C. Commissioner, Rajkot in WC (NF) No. 49 of 1997, decided on 5.11.2007, whereby the W.C. Commissioner has awarded Rs. 45,927 with 8 per cent interest in favour of claimant. The appellant has deposited Rs. 51, 209 before W.C. Commissioner, Rajkot and receipt thereof dated 2.6.2009 is attached with the memo of appeal.

3. The learned advocate Ms. Mandavia submitted that the W.C. Commissioner has wrongly given amount of compensation to claimant. She also raised contention that respondent has not taken treatment in the government hospital. The respondent has not proved that he sustained injury due to accident and there is 25 per cent disability and for proving this disability he has to examine the doctor who has given the medical certificate. The W.C. Commissioner has not considered the fact that Appellant Corporation has already paid Rs. 5,761 as compensation for the period from 31.3.97 to 19.9.1997 and Rs. 1,486 as an amount of medical compensation and Rs. 209 towards expenses. Therefore, W.C. Commissioner has no power to award further amount of compensation. She also raised contention that respondent has produced certificate from Orthopaedic Surgeon before the Corporation. She also submitted that it was informed to lawyer of respondent in writing by Corporation, even though certificate from Orthopaedic Surgeon was not produced by respondent. She submitted that whatever amount is paid, this amount is of salary and not amount of compensation, such finding of the W.C. Commissioner is erroneous. She also submitted that the age of respondent is 50 years as has been considered by W.C. Commissioner, is without any cogent evidence and no salary certificate is produced by respondent before the W.C. Commissioner. Therefore, W.C. Commissioner has committed gross error. She also submitted that W.C. Commissioner has wrongly held medical certificate of Dr. Dholakia just and proper and appellant has not cross-examined the doctor. She further submitted that W.C. Commissioner has wrongly given finding that amount of compensation is not paid by appellant. She submitted that writing given by respondent that he will not file any litigation before any court of law, has not been properly appreciated by W.C. Commissioner. The writing given by respondent vide Exh. 23 has not been considered by W.C. Commissioner. Therefore, she submitted that the W.C. Commissioner has passed illegal and erroneous order, which requires interference by this court.

4. I have considered submissions made by learned advocate Ms. Mandavia and also perused the judgment and order passed by W.C. Commissioner, Rajkot. Before the W.C. Commissioner, in claim application, respondent has stated that on 31.3.1997 when he was on route from Dhoraji to Jetpur as bus conductor, at about 3 p.m. the route board was not properly fitted inside the bus and, therefore, he made efforts to properly fit such route board. Meanwhile, due to jerk, his leg came into passenger's seat and due to that, he received injury in right leg and after preliminary treatment given at Jetpur, he was admitted in hospital at Rajkot on 1.4.97 where he was operated in the right leg and plate and screw has been inserted and he remained in hospital for 10 to 12 days and 25 per cent disability has been received by respondent-claimant. He was aged about 50 years and receiving Rs. 2,000 as salary. Therefore, claim of Rs. 45,927 and 50 per cent penalty and interest has been demanded by respondent.

5. A reply was filed by appellant vide Exh. 25 denying averments made in claim application and came out with the case that because of the aforesaid accident as alleged by respondent, the Corporation has paid Rs. 5,761 as compensation, Rs. 1,486 as medical expenses and