1. This appeal has been preferred by the Insurance Company/Opp. party under Section 30 of the Workmen's Compensation Act, 1923 (in short the Act) against the Judgment and award dated 27.8.1999 passed by Commissioner for Workmen Compensation & Assistant Labour Commissioner (U.P.) Rishikesh (hereinafter referred to as the Commissioner) in WCA Case No.2 of 1999, whereby the Commissioner has ordered the Opp. party No. 2-Insurance Company to pay Rs. 2,63,940/- as compensation to the claimant within a period of 30 days from the date of order, failing which the Insurance Company will also be liable to pay interest at the rate of 12% per annum on the said amount.

2. Brief facts of the case giving rise to this appeal are that injured/claimant was employed under the employment of Opp. party No. 1 in his Mini Truck No. UP 09-161 on monthly salary of Rs.3000/-. On 10.6.1997 during the course of employment the said truck turned turtle due to bursting of front tyre. The claimant-Gopal Singh sustained injuries in this accident and his right hand has become worthless due to said injuries. He has totally lost his capability for driving work. He was 22-year old on the date of accident and now he has become disabled for any work. The injured-claimant filed the petition for compensation against the Opp. parties.

3. The Opp. parties contested the case by filing their separate written statements. The Opp. party No. 1 did not dispute about the said accident, disability of the claimant due to injuries received in the said accident and insurance of the truck. He further pleaded that the offending mini Truck (No. UP 09-161) was insured with the Opp. party No.2-Insurance Company on the date of accident and the whole liability of compensation is of Insurance Company. The Opp. party No.2-Insurance Company in its written statement admitted the insurance of the offending vehicle and denied rests of the allegations of the claim petition due to lack of knowledge.

4. The learned Commissioner, on the basis of the pleadings of the parties, framed necessary issue and after appraisal of the evidence adduced by the parties allowed the petition for compensation accordingly. Feeling aggrieved, the Insurance Company has come up in this appeal.

5. The learned counsel for the appellant contended that as per Sec.2(1)(1) of the Act "total disablement" means such disablement whether of temporary or parmanent nature as incapacitates the workmen for all work which he was capable at the time of the accident but in the present case no such finding has been recorded by the learned Commissioner nor such averment has been made by the claimant/respondent No.1 in his petition and, as such, the learned Commissioner has erred in assessing the compensation payable by holding that the claimant/respondent No. 1 has become totally disabled. He further contended that the case ot1the claimant/respondent No. 1 comes within the definition of "partial disablement" as per Section 2(1)(g) of the Act which lays down that where the disablement is of permanent nature, such disablement reduces his earning capacity in every employment which he was capable of undertaking at that time and as such the learned Commissioner has erred in ignoring the fact that as the aforesaid claimant/respondent No. 1 may have become incapable of performing his driving job but this fact in itself does not mean that he has become incapable of performing every job which he was capable of undertaking at the time of accident.

6. We have gone through the material on record and perused the impugned award. The appellant-Insurance Company itself filed Annexure No.1 to the appeal, which is photostat copy of disability certificate, issued by the Medical Superintendent, Safdarjang Hospital, New Delhi in respect of the claimant Gopal Singh which shows that the disability of the claimant is 40% (forty percent) and permanently he is physically impaired in relation to his right upper limb. The claimant also deposed in his evidence o