The main legal point established is that total disability warrants an increase in compensation and entitles the affected party to interest and penalty as per the provisions of the Workmens Compensation Act.

Ashutosh Mohunta, J.

1. In order to challenge the award dated 31.1.1994 of the Commissioner for Workmens Compensation Act, Kaithal and Kurukshetra, the workman Dhayan Singh has filed this appeal. This appeal was earlier allowed by Hon ble Mr. Justice S.S. Sudhalkar vide judgment dated 21.12.1999. However, his Lordship vide order dated 31.7.2001 passed in C.M. No. 5136-CII of 2001 ordered the re-hearing of the appeal as Mr. Munishwar Puri, counsel for the Insurance Company was not served of the date of hearing i.e. 21.12.1999. In this backdrop the appeal has been listed for hearing before me.

2. The facts giving rise to the appeal are that the appellant was working as a driver with respondent No.l on Vehicle No. HR-07-2607. The vehicle was insured with respondent No. 2. On 11.1.1991 at about 6.00 P.M. while the appellant was coming back from Pehowa to Shahabad while driving the vehicle, when it met with an accident. Resultantly, the right hand of the appellant after the shoulder joint had to be amputated. The appellant, was allegedly 23 years of age at the relevant time and was getting Rs. 1,000/- as his monthly salary.

3. A claim petition was filed by the workman before the Commissioner under Workmens Compensation Act, Kurukshetra (for short the Commissioner), who awarded Rs. 86,764/- as compensation considering the disability of the workman as 80 per cent, and the liability to pay the compensation was laid on the Insurance Company. However, no penalty or interest was allowed by the Commissioner.

4. It has been contended by the learned counsel for the appellant that the Commissioner has erred in assessing the disability as 80 per cent, whereas the workman has totally been disabled due to the amputation of his right arm above elbow. He has also contended that the appellant is also eligible for the grant of interest at the rate of 12 per cent per annum as well as the penalty as the amount of compensation was not paid to him within one month from the date of its accrual.

5. On the other hand, Mr. Munishwar Puri, learned counsel for the Insurance Company, has vehemently opposed the contentions raised by the counsel appearing for the appellant. It has been contended by him that no enhancement in compensation is called for. Further, it has been contended by Mr. Puri that Insurance Company is not liable to pay interest and penalty. He contends that only the employer should be held liable therefor.

6. There is no dispute with regard to the monthly wages being earned by the workman. His monthly pay has been found to be Rs. 1,000/-. The Commissioner has held the loss of earning capacity of the workman as 80 per cent. There is also no dispute that the right arm above elbow of the workman had to be amputated. The workman is a driver by profession. It is the common knowledge that a workman cannot work with one hand. The vehicle can be driven by both the hands. Thus, I am of the considered opinion that the appellant has suffered 100 per cent disability as there is a total loos of earning capacity. In this regard I am fortified by the judgment reported as Pratap Narain Singh Deo V/s. Shjrinivas Sabata and Anr., AIR 1976 SC 222, wherein the injured was a carpenter by profession. He had lost his left hand above the elbow. It was held by their Lordships that he had been rendered unfit for the work of carpenter and was held to be totally disabled. Similarly, in the present case, the appellant has lost his right arm above elbow. He being driver by profession has been rendered disabled totally. When the total disablement has taken place, then as per Section 4(b) of the Workmens Compensation Act (for short the Act), 60 per cent of the monthly wages of the workman will have to be considered for being multiplied by the relevant factor. 60% of the wages in the case of the appellant will be Rs. 600/-. The Commissioner has held the age of the workman to be 25 years. Thus, the relevant factor for calculating the compensation under the Act would b