JUDGMENT :

H.K. Rathod, J.

Heard learned advocate Mr. Gadhia on behalf of appellant - New India Assurance Co. Ltd.

2. The appellant assurance company has challenged award passed by Workmen Compensation Commissioner, Kachchh at Bhuj in Workmen Compensation none fatal case no. 20/2007 vide Exh. 41 dated 29/4/2008.

3. The Commissioner has awarded Rs. 3,14,596/-with 9% interest from the date of accident till realisation of amount of compensation.

4. Learned advocate Mr. Gadhia raised contention that Commissioner has committed gross error in coming to conclusion that figure of disability is having adverse effect on earning capacity of workman, that has been enhanced from 25% to 60% without any medical evidence. He submitted that medical evidence suggests 25% disability, which has been enhanced without any proper evidence by Commissioner upto 60% and that is the basic error committed by Commissioner.

5. He submitted that Doctor was examined by workman before Commissioner. He also submitted that direction against appellant to pay interest is not part of terms and condition of insurance policy and submitted that there is no statutory liability of insurance company to pay interest upon compensation to workman.

6. He relied upon decision of this Court in case of New India Assurance Company Ltd v/s Pababhai Mayabhai Harijan & Ors reported in 2008 (II) CLR 161 = 2008 (2) GLR 1091 and recent decision given by Co-ordinate bench on the same issue in First appeal no. 3581/2006 dated 29/8/2008. He submitted that Coordinate bench has considered decision of Apex Court in case of New India Assurance Co. Ltd. V/s Harshadbhai Amrutbhai Modhiya reported in 2006 AIR SCW 2352.

7. He also raised contention before this Court that one side Commissioner come to conclusion that because of injury earning capacity of workman is reduced from 25% to 60%, but real fact is otherwise, because during pendency of proceeding workman was getting double amount as salary from insured. Therefore, it can not be considered a case of reducing earning capacity of workman.

8. He also raised contention that application under the provisions of Workmen compensation Act filed after a period of two years from the date of accident, even though, interest was awarded from date of accident. Except that learned advocate Mr. Gadhia has not raised any other contention before this Court.

9. I have considered contention raised by learned advocate Mr. Gadhia and I have perused award passed by Workmen Compensation Commissioner, Kachchh at Bhuj.

10. The contention raised by learned advocate Mr. Gadhia for reducing earning capacity, for that, relevant discussion made in para 20 of award, which is quoted as under:

"20. In view of the rival contentions of the parties in light of the documentary as well as oral evidence on record, this Court would like to consider as to whether the earning capacity of the applicant has been reduced totally or partially. As mentioned in the disability certificate Exh. 33 the applicant has incurred permanent disability of 25%. The applicant has not examined the medical expert evidence for throwing light on the point of disability. The applicant himself examined, on oath, at Exh. 15. He deposed, on oath, that due to the said injury and consequent disability, he is not able to do his work properly. Applicant further deposed that he used to do his work with right hand but due to accident now he is not able to do his work with right hand but dues his work with left hand. Applicant deposed, on oath, that routine work he is forced to take help of other persons. During cross-examination of the applicant, the learned advocate for the opponents have not been able to extract any contrary evidence from the mouth of the applicant that his earning capacity has not been reduced. Of course, it has come out that the applicant was doing work as R.S.T. Machine and that work cannot be done by single hand and the help of both the hands is required. Looking to the circumstance and the facts of th