JUDGMENT :

H.K. Rathod, J.

1. Heard learned advocate Mr. H.M. Thakker for appellant - Assurance Co.

2. The appellant-Assurance Co. has challenged order passed by learned W.C. Commissioner, Kutch at Bhuj in WC (NF) Case No. 7 of 2006, Exh.30 dated 21.8.2008. The learned W.C. Commissioner has awarded Rs.4,89,240/- compensation in favour of claimant with 9% interest and 50% penalty has been awarded against employer and liability of interest is fasten upon the Assurance Co.

3. Learned advocate Mr. Thakker has raised contention that W.C. Commissioner has committed an error of law in directing appellant to pay compensation with interest, though there is no provision under W.C. Act to implead the appellant in W.C. Case as there is no contract between the claimant and Assurance Co. He also submitted that W.C. Commissioner has also committed error in directing the appellant to pay compensation along with interest when there is no conclusive documentary evidence in respect of the salary of respondent No. 1. He also submitted that Rs.100/- daily bhathha cannot be considered to be a part of wages. Therefore, assessment of the monthly salary is erroneous. He also submitted that medical certificate, certifying 54% disability as a body which has not been considered and 100% disability has been taken into account without any medical certificate. Therefore, according to him, the W.C. Commissioner has committed gross error in awarding compensation to the claimant with interest against the Assurance Co. Except that, no other contention is raised by learned advocate Mr. Thakker on behalf of appellant.

4. I have considered contentions raised by learned advocate Mr. Thakker and also perused the order passed by W.C. Commissioner. The claim petition was filed by claimant claiming Rs.7,85,910/- under Section 4 of W.C. Act. Shri Jorubha Panchaji Jethwa sustained serious injuries and consequent permanent disablement in a vehicular accident which had taken place on 28.8.2005 at about 23:45 hours near Vishvanath Petrol Pump near Vasad Chokadi on Vasad-Vadodara Road National Highway No. 8. According to claimant, he was resident of village Ratnal, Taluka - Anjar, District - Kutch. He was employed as workman by opponent No. 1. He was working with opponent No. 1 as a driver on the Truck No. GJ-12-U-9713. On 28.8.2005, the applicant was on duty and was proceeding with the said truck from Pandhro to Surat. At 23.:45 hours, on the said day, when said Truck had reached near Vishvanath Petrol Pump near Vasad Chowkdi on Vasad-Vadodara Road National Highway No. 8 at that time a truck bearing No. KA-01-AB-7888 came from opposite direction and dashed and collided with the truck of applicant and accident took place. In the said accident, the applicant sustained serious injuries over the different parts of the body resulting permanent and total disability and he became incapable to do any work. The applicant became jobless because of the injury received during the course of employment. This injury received by applicant resulted into permanent and total disablement. After receiving the notice from the Commissioner, reply was filed by Assurance Co. vide Exh.24 and thereafter, the matter was proceeded further. The applicant was aged about 34 years serving as a driver with opponent No. 1 on the Truck receiving Rs.3000/- salary plus daily bhathha, totalling to Rs.6000/- which has been objected by Assurance Co. on the ground that Bhathha cannot consider to be a wages. In Para.7 of the order, certain documents are produced by applicant before Commissioner. The applicant has examined himself at Exh.22 and Dr. A.M. Kotak was examined vide Exh.25. No other evidence was produced on record on behalf of applicant. The opponent No. 2 has not submitted any documentary evidence and no oral evidence was led on behalf of opponents. The important fact is that employer remained absent and not filed reply any documentary as well as oral evidence in support of his case. The written argument was p