Anil Kumar Sharma J.

Both these appeals arise out of the same accident so with the consent of the parties they have been heard together and are being finally decided at the stage of admission by this judgment.

2. It appears that in the separate claim petitions filed before the Workmen's Compensation Commissioner the respondent no. 1 in both the appeals claimed themselves to be co-driver/khalasi and driver respectively on Tata truck no. DN 09G/9645 owned by respondent no. 2 on monthly salary was Rs. 4 500/- and 6 500/- respectively apart from diet.

3. It appears that in an accident dated 17.9.2009 the aforesaid vehicle collided with a tree by the side of the road and overturned whereby the respondents suffered grievous injuries during their employment and another workman Bajrangi suffered death. Respondent no.1 in each of the appeal claimed that due to the injuries sustained he has become permanently disabled and suffered 100% loss in their respective earning capacity. Their disability certificate mentioned that respondent Virendra Gaur had suffered 60% and Dinesh Kumar Yadav sustained 65% permanent disablement. Dr. A. K. Srivastava Orthopaedic Suregon of District Hospital Azamgarh was examined in each case who has testified that on account grievous injuries sustained by the injured they have lost their 100% earning capacity. The owner of the vehicle did not chose to contest the claim petition while appellant filed its written statement in both the cases inter alia alleging collusion between the claimants and owner of the vehicle and also disputed their salary and permanent disablement as also 100% loss in their earning capacity. The claimants led oral and documentary evidence while the appellant did not adduce any evidence. The Workmen Compensation Commissioner Azamgarh through impugned award without any evidence on the income of the claimants computed their pay @ Rs. 4 000/- per month and on the basis of medical evidence of Dr. Srivastava and disability certificate of each claimant held 100% loss in their earning capacity. As per age of respondent no. 1 in each case compensation of Rs. 5 20 584/- and 5 15 572/- together with simple interest @ 12% per annum from the date of accident till final payment was awarded directing the appellant to indemnify the award as the vehicle was insured with them and there was no breach of conditions of insurance policy. Aggrieved the appellant has preferred these appeals before this Court.

4. We have heard the learned counsel for the appellant and learned counsel for respondent no. 1 on merits with their consent. The owner of vehicle in question ( Respondent no. 2) did not chose to appear before the Workmen's Compensation Commissioner even after sufficient service and the cases proceeded exparte against him.

5. The appellant has challenged the award dated 4.12.2012 passed by Wokmen's Compensation Commissioner/Deputy Labour Commissioner Azamgarh in W.C. A No. 105/2011 - Dinesh Kumar Yadav Vs. Krishna Knit Wear Technology Ltd. Silwasa ( Gujarat) and another ( FAFO no. 457/2013) and 106/2011- Virendra Gaur Vs. Krishna Knit Wear Technology Ltd. Silwasa ( Gujarat) and another ( FAFO no. 458/2013) whereby the claim application of claimant-respondent no. 1 was allowed and compensation of Rs. 5 20 584/- and 5 16 672/- respectively have been awarded.

6. Learned counsel for the appellant has argued the following points before us in support of the appeals:

i) that claimant-respondent no. 1 in both the appeals have failed to establish their employment as driver co-driver/khalasi on the vehicle in question and their monthly pay of Rs. 4 000/-;

ii) that Workmen's Compensation Commissioner has erred in assuming 100% loss of earning capacity of claimant while assessing the amount of compensation as against 60% and 65% disability mentioned in their respective disability certificates;

iii) that Workmen's Compensation Commissioner has committed illegality in awarding compensation together with interest @ 12% per annum fr

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