Nishitendu Chaudhury, J.

This appeal under Section 30 of the Workmen's Compensation Act, 1923 (herein after referred to as the Act) is directed against the judgment and award dated 22.08.2003 passed by the Workmen's Compensation Commissioner (for short, W.C. Commissioner), Tezpur, in WC Case No. 14 of 2002 allowing compensation of Rs. 1,15,756.18 with interest @ 9% per annum.

2. One Bapu Khan claiming to be driver under one Ashutosh Das (O.P. No. 1) lodged a claim petition before the W.C. Commissioner at Tezpur stating that on 14.03.2000 while driving 708 Mini Bus Numbering AS-02-8677 from Nagaon to Lanka he met with an accident at about 10.30 a.m. at Singarapatty due to sudden mechanical defect and consequently, the vehicle turned turtle on road side. The driver sustained severe injuries on his hand, chest and left ankle and other part of the body and handiman of the vehicle also sustained injuries. Immediately, he was shifted to Nagaon Civil Hospital and later on he was treated at Nagaon under Dr. J. Sharma. A police case being Kothatoli P.S. Case No. 16 of 2000 was registered on the basis of accident information reports. He claimed that he used to get Rs. 3,500/- per month as salary and L50 per day as daily allowance and that his age was 40 years as on the date of accident. The vehicle was duly insured with the National Insurance Company Ltd. at Nagaon Branch vide Policy No. 48/0302214 and was valid up to 23.03.2003. The claimant became permanently disabled owing to the accident and demanded that he be paid Rs. 5,00,000/- towards compensation. The owner who was arrayed as opposite party No. 1 in the preceding submitted a written statement and contested the case. However, it was mentioned that the vehicle was insured with Opposite Party No. 2 National Insurance Company Limited, Nagaon Branch under a valid policy and submitted relevant documents pertaining to the vehicle.

3. Opposite party No. 2 the National Insurance Company Ltd. has also submitted written statement and denied any responsibility. It also denied the accident, employment, salaries and injuries etc. The learned Court framed as many as 5 issues as follows upon the rival contention of the parties:

"1. Whether the Court has jurisdiction to entertain the claim case?

2. Is there any cause of action for the claimant petitioner?

3. Whether the claim petition is maintainable in its present form?

4. Whether the opposite parties are liable to pay compensation as claimed by the claimant petitioner?

5. If yes, what relief is the claimant petitioner entitled to?"

4. The claimant examined two witnesses including himself as P.W. 1 and Dr. J. Sharma as P.W. 2. The Doctor stated that Exhibit-4 to 15 are the prescriptions and advised slips issued by him and Exhibit-17 is the injury report. He claimed to have examined the claimant Bapu Khan on 16.03.2000 and found that injuries mentioned in Exhibit-17. According to him, the physical disability of the claimant was 40% owing to the incident and he lost his earning capacity by 40%. He stated that the injuries are permanent in nature and the injured may not do his normal job. In course of his cross-examination, he stated that in the X-ray report it was clear that except fracture in fibula any other injuries were not found. According to him, it is difficult to drive the motor vehicle by a person having 40% injury on the left leg. However, if further treatment is there the physical ability may increase. After considering the aforesaid materials available on record the W.C. Commissioner was satisfied that claimant Bapu Khan was the driver of the vehicle and that he was injured in the incident. He sustained 40% loss of earning capacity. Considering the materials available on record the W.C. Commissioner held that monthly income of the workman would be Rs. 2,000/- and accordingly, assessment of compensation was calculated as follows:

Rs. 1200X 40% X 184.17 = 88,401.60/-

He was awarded interest @ 9 % per annum. Thus, the total amoun