The court emphasized the necessity for accurate disability assessment under the Workmen Compensation Act, clarifying that the liability for interest rests solely with the employer, not the insurance provider.

JUDGMENT :

HEMANT M. PRACHCHHAK, J.

1. Present appeal is filed by the appellant - insurance company under Section 30 of the Workmen Compensation Act, 1923 (hereinafter be referred to as “the Act”) challenging the impugned judgment and order dated 04.05.2007 passed by the learned Workmen Compensation Commissioner, Labour Court, Surat in Workmen Compensation (Non-Fatal) Case No.18 of 2003 whereby the learned Commissioner has allowed the application filed by the claimant and awarded the compensation of Rs.3,62,988.00 along with the penalty and interest.

2. Being aggrieved and dissatisfied with the impugned judgment and order of the learned Commissioner, the present first appeal is filed by the appellant – insurance company on the grounds that learned Commissioner has committed an error in assessing the percentage of disability though in the medical certificate the disability was shown at 15%, whereas, the learned Commissioner has considered the disability at 100% and also committed an error in awarding penalty.

3. Heard Ms.Lilu Bhaya, learned counsel appearing for the appellant – insurance company. Though served, the respondent – original claimant has chosen not to appear before the Court. Even the respondent was served by substitution of service despite of the same he is not remained present before the Court and, therefore, the publication in the gazette and the proposed substantial questions of law has been supplied by the learned counsel appearing for the appellant.

4. Ms.Bhaya, learned counsel appearing for the appellant has submitted the same facts which are narrated in the memo of appeal and has submitted that the learned Commissioner has exceeded his jurisdiction which is not vested with him and committed an error in assessing the disability at 100%, whereas, the disability was shown in the medical certificate at 15%. She has submitted that the learned Commissioner has considered the income of the claimant on higher side, though as per the evidence produced before the learned Commissioner the workman was receiving Rs.3500/- per month, who serving as driver sustained injury below the left leg knee and fracture on right leg knee. She has submitted that the learned Commissioner has committed serious error of law and facts in awarding 6% interest and the liability was fastened upon the appellant instead of original employer. She has submitted that the net amount of Rs.1,81,494/- as compensation is required to be paid.

4.1 Ms.Bhaya, learned counsel has emphasized upon said provision and submitted that the learned Commissioner has awarded 6% interest and liability was fastened upon the insurance company which is not just and proper. Ms.Bhaya, learned counsel has urged to allow the appeal and to quash and set aside the impugned judgment and order passed by the learned Commissioner.

5. The contention raised by Ms.Bhaya, learned counsel with regard to disability received by the claimant is concerned, in the opinion of this Court, the same is required to be considered in light of the provisions of law as it is mainly relied upon the medical certificate issued by Krupa Orthopedic Hospital wherein the disability was assessed by the doctor at 15%. In my view, while assessing the disability, the factum is required to be considered not only in the nature of injury but cause of such injury. So far as the contention with regard to disability is concerned, I am not agreement with the disability considered by the learned Commissioner.

5.2 The contention with regard