JUDGMENT :

Heard Ms. S. Roy, learned counsel for the appellant-Insurance Company which has preferred the present appeal under Section 30 of the Workmen’s Compensation Act 1923 (presently Employees Compensation Act, 1923). The said appeal has been preferred against a Judgment and Award dated 05.04.2010 passed by the learned Commissioner, Workmen’s Compensation, Tezpur in Workmen’s Compensation Case No. 07/2008 by which a sum of Rs.2,47,140/-(Rupees Two Lakh Forty Seven Thousand One Hundred Forty) has been awarded.

2. This Court while admitting this appeal vide order dated 06.08.2010 had formulated the following two substantial questions of law.

1. Whether the injury sustained by the claimant not being one as specified in Schedule I part II of the Workmen’s Compensation Act, 1923 and there being no evidence and finding at all to show that the alleged disablement of the claimant reduces his earning capacity in every employment which he was capable of undertaking at the time of accident, the learned Commissioner was justified in granting compensation in accordance of the provisions of Section 4 (1) (c) (ii) of the Act.

2. Whether the Medical Practitioner having purportedly assessed the loss of earning capacity of the claimant at 50 % without due regard to the percentage of loss of earning capacity in relation to the injuries specified in Schedule-I of the Workmen’s Compensation Act, 1923, the learned Commissioner has been justified in acting upon the said purported assessment and granting compensation under Section 4 (1) (c)(ii) of the Act.

3. The claim was instituted by the respondent no. 1 as claimant under Sections 3 & 4 of the Act for injuries sustained by him in a motor vehicles accident arising in the course of his employment with the respondent no. 2. It is the case of the claimant that he used to work as a driver in a vehicle bearing No. AS-12E/0392 (Cruiser) under the respondent no. 2 for transporting passengers and was paid a monthly salary of Rs. 4000/-(Rupees Four Thousand) and a daily allowance of Rs. 50/-. The claimant had stated that he was 23 years of age at the time of the accident which had occurred on 30.05.2007 at Senchowa in the district of Nagaon. In the said accident, the claimant had sustained multiple grievous injuries on his left leg, hip joint and other parts of the body. The claimant has also submitted that he had suffered permanent partial disablement because of the accident and as no compensation was paid, the instant application was filed with a claim of Rs. 2,50,000/-(Rupees Two Lakh Fifty Thousand). The connected police case was registered as Haiborgaon T.O.P. GDE No. 848 dated 30.05.2007. It is also the case of the claimant that the vehicle in question had a valid insurance cover.

4. The present respondent no. 2 who was the Opposite Party No.1 (owner) had appeared before the Commissioner and had filed written statement wherein most of the factual aspects were admitted. There was clear admission of the claimant being an employee, his salary etc. It was only the aspect of daily allowance which was denied and other aspects were mostly admitted.

5. The Insurance Company -present appellant which was arrayed as Opposite Party No. 2 had however denied the claim including the fact of employment.

6. The claimant had adduced evidence as PW1 and the second witness PW2 was Dr. Munin Borkataky, the physician who was consulted by the claimant and who had also issued the Disability Certificate. In the evidence recorded, it clearly came out that the claimant was not in a position to perform duties as driver due to the injuries sustained and the pain he was suffering on his left leg and hip. The contesting opposite parties before the Commissioner however did not adduce any evidence.

7. The learned Commissioner, as indicated above, after hearing the parties had made the award for an amount of Rs. 2,47,140/-(Rupees Two Lakh Forty Seven Thousand One Hundred Forty) with interest @ of 12% from the date of issue of the order.

8.