Mr. Amol Rattan Singh, J.:- The two issues in the present appeal, arising out of the order of the learned Commissioner under the Employees’ Compensation Act, 1923, dated 28.03.2002, are:-

i) Whether the wages of the deceased employee of respondent no.1 should have been calculated as per the maximum amount prescribed after the amendment in Explanation-II given below Section 4(1)(b) of the Employees’ Compensation Act, 1923 (formerly titled as the Workmen’s Compensation Act, 1923 and hereinafter to be referred to as the Act); and

ii) Whether the penalty prescribed under Section 4-A of the Act, is payable to the appellants and if so, by whom, i.e. by respondent No.1 or by respondent No.2.

2. The facts giving rise to the litigation are that the deceased, Ram Avtar son of Shri Khem Chand, i.e. husband of appellant no.1 and father of appellants no.2 and 3, was working with respondent no.1 as a driver. On 18.04.2000, while he was driving Jeep bearing Registration No.HR 26-C-6488, owned by respondent no.1, he met with an accident with a tractor in the area of village Wazirpur, District Gurgaon and unfortunately died due to the injuries sustained by him in the said accident.

3. The appellants (appellants no.2 and 3 through their mother, appellant no.1) are stated to have served a notice upon respondent no.1 on 30.05.2000 but no compensation was paid by respondent no.1, leading to filing of an application before the Commissioner under the Act, on 06.10.2000.

4. Though the appellants’ own contention initially was that the deceased was working on a monthly salary of Rs.3500/-, respondent no.1 who appeared as AW1 before the Commissioner, stated that, in fact, he was paying a monthly salary of Rs.4500/- to Ram Avtar and that he had duly informed respondent no.2 (the National Insurance Co. Ltd.), with whom the jeep driven by the deceased was insured, of the accident and death of Ram Avtar. He also submitted that he had paid extra premium to the Company, as regards the liability of a driver.

5. It is necessary to notice at this stage itself, that the vehicle was insured under the Motor Vehicles Act, 1988 and though the compensation has been sought under the Workmen’s Compensation Act, the claim itself is not disputed by respondent no.2, except as regards the two questions made out at the outset of this judgment.

6. The Commissioner, after considering the evidence led before him, awarded a sum of Rs.2,11,790/-to the appellants, to be paid by respondent no.2, along with costs of Rs.2000/- and interest at the rate of 12% per annum, from the date of accident, i.e. 18.04.2000, till the date of the order pronounced by him, i.e. 28.03.2002. He calculated the interest to be Rs.48,985/-, which is not in dispute.

It was further ordered, that if respondent no.2 failed to pay the entire sum as awarded, including interest, within 60 days, further interest at the rate of 15% per annum would be payable, from the date of the order till realisation of the amount awarded.

It is not in dispute that the amount, as awarded, has been paid to the appellants, by respondent no.2.

7. Mr. Rana, learned counsel appearing for the appellants, submitted that, firstly, the Commissioner had erred in calculating the amount awardable to the appellants, inasmuch as he took the maximum amount of monthly wages payable to the deceased, upon which calculation is to be based for granting compensation, to be Rs.2000/-, whereas, at the time of passing of the order of the Commissioner, on 20.08.2002, Explanation-II below Section 4(1)(b) of the Act had been amended w.e.f. 08.12.2000, by The Workmen’s Compensation (Amendment) Act, i.e. Act No.46 of 2000. The cap of Rs.2000/- to be taken as the maximum monthly wage was raised to Rs.4000/- per month, by the said amendment. He, therefore, submitted that the amendment having come about during the pendency of the claim proceedings before the Commissioner, the benefit thereof must be given to the family of the deceased.

8. Next, Mr. Ran