In this appeal under Section 30 of the Workmen’s Compensation Act, 1923 (now renamed as ‘Employees Compensation Act, 1923’) has been preferred by the Insurance Company challenging the Judgment and award dated 3.1.2007 passed by the W.C. Commissioner, Nagaon in NWC Case No.184 of 2003 thereby passing the award of Rs.1,20,960/- in favour of the workman after having found that the workman suffered 25% physical disability resulting in loss of earning capacity to the extent of 30%.

2. One Rambabu Sahani approached the W.C. Commissioner, Nagaon by filing a petition under Section 3 and 4 of the W.C. Act, 1923 stating that he was working as cleaner in a motor vehicle belonging to one Pawan Kumar More. The vehicle was registered as NLW 1731 and when it was proceeding on 24.7.2003 from Hojai towards Nagaon , it met with an accident near Badalgaon at about 4 pm due to head on collision with a mini bus. The said mini bus is alleged to have come in rash and negligent manner resulting in the accident due to which the claimant sustained multiple grievous injuries on his both bone of right elbow joint. He also suffered injuries on other parts of the body. Immediately he was taken to B.P. Civil Hospital at Nagaon. In connection with this accident, GD entry No. 582 dated 24.7.2003 was registered by the Nagaon Police Station. The workman claimed that he became permanently disabled due to the accident and totally lost his earning capacity. He claimed that he was 20 years of age at the time of accident and that he was drawing monthly salary of Rs.1,000/- in addition to daily allowance of Rs.100/-.

3. Since the vehicle was insured with the present appellant, the insurance company was made a party being opposite party No. 2. The opposite party No. 2 filed written statement denying the accident and injuries sustained by the workman and thereupon the W.C. Commissioner proceeded to decide the case on merit. The workman examined himself as PW-1 and one Dr. Dipesh Das as PW-2. A number of documents were also exhibited in support of the contention of the claimant. Opposite party No.2 examined one Swapan Kumar Bhattacharjee as DW-1 who is the Assistant Manager in Nagaon Branch of the insurance company. In course of his evidence, the claimant stated that he was working as handyman in Truck No. NLW 1731 belonging to Pawan Kumar More. He was paid Rs.3500/- per month. He was working for 11/12 months prior to the accident. On 24.7.2003 while the vehicle was proceeding from Hojai , it met with an accident owing to head on collision with a 709 mini bus and due to the accident he suffered fracture injuries on his right elbow apart from other injuries. He was treated at Nagaon Civil Hospital and the owner of the vehicle did not give him any money towards the treatment. He claimed that thereafter he went to Dr. Dipesh Das for treatment who conducted his treatment and also issued certificate. He exhibited the accident information report as Exhibit-1, X-ray report as Exhibit-2 and physical disability certificate as Exhibit-3 and A/D card intimation to vehicle owner as Exhbit-4 and 5. The insurance company cross examined the witness at length. A suggestion was put to him that he was neither a handyman to the ill-fated vehicle nor was he present in the vehicle when it met with the accident. He supported his pleading that daily allowance of Rs.100/- was given to him by the owner of the vehicle for his food in addition to his regular salary. He stated that after getting treatment from the Civil Hospital, he was treated by one Dr. Poddar and thereafter Dr. Das treated him. He claimed that even till the date of deposition he had pain at his elbow.

4. Dr. Dipesh Das was examined as PW-2 by the claimant. He stated that he is the doctor of Dalang ghat 16 A.P Battalion. He also sits at Jasmine Pharmacy and G.D. Nursing Home. He admitted that Exhbit-3 medical certificate was given by him to Rambabu Sahani. According to him, Rambabu Sahani came to him for the first time on