JUDGMENT : P.C. Naik, J. - W.C. Case No. 19 of 1988 was filed by Represent appellant before the Commissioner for Workmen's Compensation-cum-Assistant Labour Commissioner, Sambalpur claiming compensation amounting to Rs. 30,000/- from the owner and insurer of the vehicle which was involved in an accident. On notice being served, the owner and insurer entered appearance and denied their liability. In support of his case, the applicant examined himself as PW 1 and one Banamali Bhoi was examined as PW 2. One Sri Keshab Chandra Behera was examined as a witness by the opposite parties. Some documents, namely, the discharge certificate, cash memos and police papers were also filed. However, no medical evidence was adduced by the Appellant/Claimant in support of his claim. 2. On a consideration of the material on record, the learned Commissioner held that medical evidence having not been adduced, there was no material on record on the basis of which he could assess/ascertain the loss of earning capacity of the applicant due to the injuries suffered in the accident. In the opinion of the Commissioner, mere filing of a discharge certificate issued.by the hospital was not sufficient for assessing the loss of earning capacity, as under the law, the assessment is required to be made by a qualified medical practitioner. Accordingly, the Commissioner, held that there was no merit in the application and the applicant was not entitled to any compensation from the opposite parties. Hence the claim application was dismissed on February 29, 1992. 3. Against the judgment dated February 29, 1992 dismissing his claim, the claimant-appellant filed this appeal in which the owner and insurer of the truck are impleaded as Respondent Nos. 1 and 2 respectively. As, in spite of a peremptory order dated July 1, 1994, requisited for issuance of notice to the Respondent No. 1 were not filed, the appeal stood dismissed as against the said Respondent No. l on February 1995 for non-compliance of the said peremptory order dated July 1994. The effect of dismissal of the appeal against Respondent No. 1 was to be considered at an appropriate stage i.e., at the time of hearing. 4. The effect of dismissal of the appeal against Respondent No. 1 was to be considered at an appropriate stage i.e., at the time of hearing. 4. Admittedly, in this case the liability is sought to be saddled on the insurer in terms of Section 96 of the Motor Vehicles Act, 1039 which cases a duty on the insurer to satisfy the judgment and award against the person insured in respect of third party risk in terms of Section 95(1) of the Act. Sub-Section (1) of Section 96 is in the nature of a declaratory provision whereby the insurer is deemed to be the judgment-debtor when a decree is passed against the insured under certain circumstances rendering him i.e. the insured liable to a third party. A plain reading of Sub-Section (1) of Section 96 would indicate that the pre-condition of liability of the insurer arises when a judgment is obtained against the insured person who has taken a policy of insurance. Therefore, in absence of a judgment or award against the insured, no liability whatsoever would fall on the insurer according to the language of Sub-Section (1) of Section 96 of the Act. In other words, initially the liability is to be saddled on the insured and it is only after he is made liable, can the liability be saddled on the insurer. 5. In the case at hand, the appeal against the insured stands dismissed in terms of this Court's Order No. dated July 1, 1994 read with Order No. 11 dated February 25, 1995. Thus, the Award of the Commissioner by which the appellant's claim case was dismissed, has become final against the insured. Since the appeal against the insured stands dismissed it follows that no liability can be fastened on him in this appeal. So if liability cannot be fastened on the insured it cannot, in view of the provisions contained in Sub-section (1) of Section 96 of the Motor Vehicle Act, 1939, be fastened on the insurer either. Hence, once an appeal stands dismissed against the insured, it cannot also continue against the insurer. The present appeal has therefore to be dismissed on this ground alone. 6. Even on merits the appellant- claimant has no case. Section No. 4 of the Workmen's Compensation Act, 1923 deals with the amount of compensation. Hence, once an appeal stands dismissed against the insured, it cannot also continue against the insurer. The present appeal has therefore to be dismissed on this ground alone. 6. Even on merits the appellant- claimant has no case. Section No. 4 of the Workmen's Compensation Act, 1923 deals with the amount of compensation. As this is a case of injury and not of death, the amount is to be determined in accordance with the provisions contained in Section 4(1)(c)(ii) of the Act which reads thus: "(c) Where permanent partial disablement results from the injury. (i) In the case of an injury specified in Part II of Schedule 1, such percentage of the compensation which would have been payable in the case of permanent total disablement as is specified therein as being the percentage of the loss of earning capacity caused by that injury; and (ii) in the case of an injury not specified in Schedule 1, such percentage of the compensation payable in the case of permanent total disablement in proportion to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury." 7. Admittedly, in this case, a qualified medical practitioner has not been examined to prove by what percentage the earning capacity of the Appellant/ Claimant was reduced. Under the circumstances, the learned Commissioner was justified in refusing relief to the claimant. The order therefore, calls for no interference. 8. Accordingly, the appeal is dismissed. There will be no order as to costs. Final Result : Dismissed