The central legal point established in the judgment is the requirement for substantial medical evidence to support assessments of disability and loss of earning capacity under the Workmen’s Compensation Act.

1. Heard Mr. R. K. Bhatra, learned counsel appearing for the appellant. None appears on call for the respondents No. 1 and 2, i.e. the claimant as well as the owner of the vehicle, despite service of notices.

2. The learned counsel for the appellant submits that pursuant to order dated 25.11.2013, as a part of the award, the appellant had deposited a sum of Rs.1,50,000/- before the learned Commissioner, Workmen’s Compensation, Tezpur, by Cheque No. 822548 dated 12.12.2013, which was duly acknowledged by the Commissioner, Workmen’s Compensation, Tezpur. Therefore, it appears that the respondent No. 1 is fully aware of the proceedings of this appeal. Therefore, in view of the non-appearance of the respondents No. 1 and 2 despite service of notice, the matter is heard ex-parte against them.

3. This appeal under Section 30 of the Workmen’s Compensation Act, 1923 is directed against the judgment and order dated 19.04.2012, passed by the learned Commissioner, Workmen’s Compensation, Tezpur, Zone III, in SWC Case No. 14/2011. The said appeal was admitted by this Court by order dated 25.11.2013, on the following substantial question of law:-

“Whether the learned commissioner, Workmen’s Compensation, in view of the evidence of PW-2, Munin Borkotoky, was justified in awarding the compensation under the provisions of Section 4 (1)(c)(ii) of the Employees’ Compensation Act?”

4. The case of the respondent No. 1/claimant is that he was employed as a labourer in a truck bearing Registration No. ASW-6735, owned by the respondent No. 2. It was claimed that he was earning a monthly wage of Rs.6,000/-excluding allowances. In course of his employment, he was travelling as a labourer on the said truck from Misa to Nagaon on 04.07.2010. On N.H.-37 at Rongagorah, to avoid accident with another vehicle, the driver of the truck applied brakes, but the axel bar of the truck came out of the chasis and the truck turned turtle on the road at about 7 A.M. The police took him for treatment to B.P. Civil Hospital, Nagaon. In the accident, he has claimed to have suffered grievous injuries. Later on, he was treated privately and the said accident was registered as Samaguri P.S. G.D. Entry No. 07.04.2010. The respondent No.1 claimed that due to injury he could not recover from his injury and could not perform his earlier job as labourer and therefore, made a claim for Rs.4,00,000/-with interest thereon. Further, it was also claimed that the respondent No. 2, who was aware of the accident, had paid him some money for treatment and therefore, no notice under Section 10 of the Workmen’s Compensation Act was necessary.

5. The appellant herein contested the claim petition and by taking usual plea, the liability to pay any compensation was disowned.

6. The respondent No. 1 examined himself as P.W. 1 and also examined one doctor as P.W. 2 and the following documents are exhibited viz., (1) accident information report (Ext. 1), (2) prescription (Ext. 2 to 10), (3) injury report and X-ray report (Ext. 11 to Ext. 13), and (4) copy of notice under Section 10 (Ext. 14).

7. In respect of issue No. 1, the learned Commissioner had held that the respondent No. 1 was working as the labourer in the concerned truck and he was the employee within the meaning of clause I(c) of section 2(1)(dd) of the Workmen’s Compensation Act. In respect of issue No. 2, it was held that the accident had occurred in course of and arising out of employment under the respondent No. 2. In respect of issue No. 3, it was held that as per the evidence of the doctor (P.W. 2), the respondent No. 1 had suffered fracture in the both bones of right leg and in view of the assessment of the doctor, it was held that the respondent No. 1 had suffered permanent partial disablement of 30% and had suffered a loss of earning capacity of 40% and the issues were decided in favour of the respondent No