1. This appeal under Section 30 of the Workmen’s Compensation Act, 1923, has been preferred by the insurance company challenging the judgment and award dated 18.03.2005, passed by the Commissioner, Workmen’s Compensation, Nagaon in W.C. Case No. 55/2002. By that judgment and award, the learned Tribunal directed the insurance company to make payment of Rs. 2,65,205/- to the claimant along with interest at the rate of 12% per annum from the date of filing of the claim petition till realisation.

2. One Abu Bakkar Siddique, as claimant, instituted N.W.C. Case No. 55/2002 before W.C. Commissioner, Nagaon stating that he was a labourer under Kailash Gagger (O.P. No. 1) in respect of a truck bearing registration No. AS-02A-1449. On 28.01.2002 while the truck was moving along with load of brick making materials it met with an accident at Rowmari village at about 3.30 pm. The vehicle capsized on the road side as a result of which the claimant received injuries. He was taken to Nagaon Civil Hospital and diagnosed to have suffered compound comminuted fracture of right femur. In this connection the traffic police of Nagaon made G.D. Entry No. 585 dated 28.01.2002.

3. On being summoned, the OP No. 1 owner appeared but did not deny the accident and employment of the claimant. He disclosed that the vehicle was under insurance coverage of the Oriental Insurance Company Limited which was impleaded as OP No. 2. The OP No. 2, on the other hand, denied the liability as a whole. Under such circumstances, the W.C. Commissioner framed 4 issues as follows:-

(1) Is there any cause of action for this claim petition?

(2) Is the claim petition maintainable in its present form?

(3) Is the disablement of the claimant was caused in course of and arising out of his employment and whether the OP’s are liable?

(4) If so, what relief the claimant is entitled to?

4. The claimant examined himself as PW 1 and one Dr. KP Goswami as PW 2. It was claimed by the claimant that he was about 40 years of age at the time of accident and that he was getting monthly wage of Rs. 3000/- from the owner. The PW 2 also deposed in the same breadth and proved injury certificate. According to him, the workman suffered physical disablement to the extent of 50% for which his earning capacity was reduced by 50%. Considering the evidence, the Tribunal decided all the issues in favour of the claimant and held that insurance company is liable to make payment of Rs. 2,65,205/-.

5. I have heard Mr. SK Goswami appearing for the insurance company. None appears for the workman or the owner although notices were duly served. I have perused materials available on record.

6. On perusal of the records it appears that the insurance company deposited Rs. 2,65,205/- with the W.C. Commissioner in time and the same was eventually released in favour of the claimant. Perhaps this is the reason for which the workman has not ventured to appear before this court even after receipt of notice of this appeal.

7. Mr. SK Goswami, learned counsel for the appellant, submits that the Tribunal committed jurisdictional error in applying the provision of the Section 4(1)(c)(ii) of the W.C. Act, 1923, in the present case in view of the fact that the claimant has miserably failed to prove that he had suffered from permanent partial disability resulting in loss of earning capacity. Even PW 2 doctor, who was cross examined at length by the insurance company, could not show as to how did he arrive at the finding that the workman had lost earning capacity to the extent of 50%. Drawing attention of the Court to entry No. 22 of Part-II of Schedule I to the Act, Mr. SK Goswami argues that amputation of one foot result in 50% loss of earning capacity. Similarly, amputation below knee with stump exceeding 12.70 cm has resulted in loss of earning capacity to the tune of 50%. In the case in hand, there was no amputation at all and there was merely fracture of the femur bone and that being the position, it was definitely le