JUDGMENT P. K. MOHANTY, J. — Both the appeals are from a common judgment of the Commissioner of Workmen’s Compensation, on the consent and on agreement of the learned counsel for the parties, they are heard analogous and disposed of by this common judgment. 2. Misc. Appeal No. 196 of 2002 is directed against the award of the Commissioner for Workmen’s Compensation-cum-Assistant Labour Commissioner, Cuttack in W.C. No.88-D of 2000, whereas Misc. Appeal No.197 of 2002 is against the award passed in W.C. Case No.89-D of 2000, delivered in a common judgment. 3. The brief facts are that the claimants were working as Driver and Coolie of the truck bearing registration No. OIU 5893 and on 15.2.2000 at about 4.30 P.M. while discharging their duties, they sustained bodily injuries resulting in disability arising out of and in course of their employment and hence the claim for compensation. The owner and insurer were made parties and they had filed their separate written statements. The owner in his written statement admitted the employment, accident and the injuries. However, he disputed the age and the nature of the injuries, consequently compensation claimed. The insurer denied the claim calling upon the applicants to prove their cases. 4. The Commissioner for Workmen’s Compensation-cum-Asst. Labour Commissioner (hereinafter called “the Commissioner”) framed the following four issues : (1) Whether the applicants are workmen within the meaning of the W.C. Act ? (2) Whether the accident arose out of and in course of their employment under opp.party No.1 ? (3) What are the nature and extent of injuries of the applicants ? (4) Whether the opp.parties are liable to pay compensation ? If so, to what amount ? 5. Claimants Laxman Sethy and Bhagirathi Maharana have examined themselves and examined the treating physician Dr. B.K. Patnaik as O.P.Ws. 1, 2 and 3 respectively. The Commissioner has recorded a finding that the claimants while discharging their duties as coolie and driver in the offending Truck bearing Regis¬tration No. OIU 5893 belonging to Bhagirathi Maharana, and met with the accident, P.W.1 Laxman Sethi sustained the injuries and were treated by P.W.3. In spite of plasters and dressing after it was opened, the defect could not be cured and both of them were unable to walk as before, for which they were sitting unemployed. The claimants filed certified copies of the police papers and medical documents issued by Dr. In spite of plasters and dressing after it was opened, the defect could not be cured and both of them were unable to walk as before, for which they were sitting unemployed. The claimants filed certified copies of the police papers and medical documents issued by Dr. B.K. Patnaik marked as Ext. 1 to 9. The owner of the vehicle examined himself as O.P.W. No.2, has supported the employment, accident and the injuries sustained by the claimants. The Commissioner found that the claimants were working as Coolie and driver in the truck, which met with the accident on 15.2.2000 at about 4 A.M. near Brahmai Devi Deity temple. On consideration of the oral evidence of the witnesses and the documents produced, the Commissioner has assessed the percentage of disability at 25 % but the loss of earning capacity has been fixed at 20 %. Taking monthly earning of P.W.1 as Rs.1500/- per month and the age factor for calculation of compen¬sation as 30 years, the Commissioner held that P.W.1, the claim¬ant in W.C. Case No.89-D of 2000 was entitled to Rs. 37, 436.40 or Rs. 37, 436/-. Similarly in W.C. Case No.88-D of 2000 the Tribunal found from evidence on record that the loss of earning capacity of P.W.2 at 20%. Taking the earning of the driver at Rs.2000/- and the age factor for calculation of compensation as 33 years, determined a sum of Rs. 48,398/-as the sum payable. The National Insurance Company Ltd., the appellant, being the insurer of the Truck in question, has been held to be liable to pay the aforesaid amount. 6. The learned counsel for the appellants assail the impugned awards mainly on the ground that reasonable opportunity was not given to the appellant to adduce any evidence to the effect that the injured persons were not workmen, since they were members of “Maa Mangala Band Party” and the Truck was hired by the owner of the said band party. The contention of the learned counsel that the appellant was not given adequate opportunity to adduce evidence is intended and misconceived. It appears from the order-sheet of the W.C. Case dated 16.3.2001 that the present appellant filed two sets of amendment petition in W.C. Case No.88-D of 2000 and 89-D of 2000. The claimants were allowed to file their objections. The case was posted to 26.3.2001 for hearing of the amendment petition. It appears from the order-sheet of the W.C. Case dated 16.3.2001 that the present appellant filed two sets of amendment petition in W.C. Case No.88-D of 2000 and 89-D of 2000. The claimants were allowed to file their objections. The case was posted to 26.3.2001 for hearing of the amendment petition. On 26.3.2001, the amendment petition filed by the appellant was allowed and the appellant was also allowed to file the amended written statement by 28.4.2001. On 24.4.2001 the appellant filed its amended written statement in both the cases and the case was adjourned to 10.7.2001 for orders. The case was ultimately posted to 13.8.2001, on which date, the appellant (opp.party No.2 before the Commissioner) filed a time petition on the ground that the conducting officer of the Insurance Company has gone outside for necessary work and he is unable to attend the Court for hearing. The case was ad¬journed to 30.8.2001. On that date, the appellant again filed a time petition on the ground that the conducting officer has gone outside from his office on his necessary official work and since he is unable to attend, the case should be adjourned. That appli¬cation was also allowed and the case was posted to 12.9.2001. Again on 12.9.2001, the insurer-appellant filed another time petition on the ground that one P.K. Das, who is the Investigator in the case has gone out of station to his native place for necessary work and as such, he is unable to attend the Court for adducing evidence and as such, the case should be adjourned. At this stage, the Commissioner rejected the time petition with the observation that in spite of sufficient opportunity the insurer having failed, no further time should be granted. The case was adjourned to 22.9.2001, while advocates for both the parties were present. The insurer-opp.party No.2 before the Commissioner filed another time petition and that was also rejected. The argument was heard and the case was posted to 16.10.2001 for judgment. On 16.10.2001, the judgment being not ready, the case was posted to 16.1.2002. However, on 21.12.2001, the judgment was pronounced. 7. The Insurer, by way of amendment, took the plea in the written statement that the investigation made by the appellant reveals that the injured Bhagirathi Maharana along with others had been to Tigiria Sasan by Mini Truck No.OIU-5893 being a member of the Maa Mangala Band Party. However, on 21.12.2001, the judgment was pronounced. 7. The Insurer, by way of amendment, took the plea in the written statement that the investigation made by the appellant reveals that the injured Bhagirathi Maharana along with others had been to Tigiria Sasan by Mini Truck No.OIU-5893 being a member of the Maa Mangala Band Party. It is stated that the insurer was one of the members of the said band party and not a Cooli as stated by the claimants and so also, the similar stand was taken in respect of the Driver. 8. In spite of such stand taken in the amended written statement, the appellant chose not to examine any witness or produce any document in support of the stand taken in the written statement in spite of several adjournments granted for that purpose. In such view of the matter, the contention that the appellants were not given adequate opportunity to defend their case cannot be accepted. Rather, it appears that time was granted liberally, even though such grounds that the officer has gone on official work or his home without anything more, but the appel¬lant perhaps took the case very casually as if attending a case of defending the same was not a part of their job. 9. Be that as it may, in view of the factual position, the appellant having not adduced any evidence nor produced any mate¬rial to dislodge the claim of the claimants that they were serv¬ing as driver and coolie in the offending Truck and in view of the admission of the owner of the Truck that they were the em¬ployees working as driver and coolie in the offending truck, the findings of the Commissioner cannot be interfered with in these appeals. 10. The learned counsel then contended that in view of the nature of injuries and the evidence on record, the determination made by the Commissioner as regards loss of earning capacity at the rate of 20% is high and excessive and contrary to the evi¬dence on record. I have perused the deposition of Dr. Bijaya Kumar Patnaik, who had treated the claimants. He is a private medical practitioner and he treated the claimants and found tenderness, oedema and restriction of movement of left knee and advised for X-ray of left leg and chest. I have perused the deposition of Dr. Bijaya Kumar Patnaik, who had treated the claimants. He is a private medical practitioner and he treated the claimants and found tenderness, oedema and restriction of movement of left knee and advised for X-ray of left leg and chest. The X-ray, according to the doctor, revealed crack fracture of left patela and fracture of third and fourth ribs of left side chest. Plaster was made, which was removed on 31.3.2000, after which the doctor found still some pain in the chest in deep breathing. The Doctor found the percentage of disability to the extent of 25% and the loss of earning capacity of 20% in case of both the claimants. In view of the nature of injuries, the nature of treatment given and taking into consideration the fact that the claimants without going to Medical College Hospital or any Government hospital or to an orthopedic specialist, chose to be treated with P.W.3. I am of the considered opinion that the loss of disability and loss of earning capacity have been made at a higher side and taking an overall view of the matter, the loss of earning capacity should be assessed as 15% and so I do. Thus, taking the loss of earning capacity at 15% in each case, without touching the other factors, the quantum of compen¬sation in Misc. Appeal No.197 of 2002, arising out of W.C. Case No.89-D of 2000 shall be Rs. 900 x 207.98 (age factor 30) x 15% = Rs. 27,077.30 paise which can be rounded up to Rs.27,100/- (Rupees twenty-seven thousand one hundred). Accordingly, the claimant Laxman Sethy shall be entitled to Rs. 27,100/- along with proportionate interest instead of Rs. 37,436/- granted by the Commissioner. The judgment in W.C. Case No.89-D of 2000 shall stand modified to that extent. In Misc. Appeal No. 196 of 2002, arising out of W.C. Case No.88-D of 2000 the compensation shall be Rs.1200 x 201.66 (age factor 33) x 15% = Rs. 36,298.80 paise, which can be rounded up to Rs. 36,300/- (Rupees thirty-three thousand three hundred). Accordingly, the claimant Bhagaban Behera shall be entitled to Rs. 36, 300/- along with proportionate interest instead of Rs. 48,398/- granted by the Commissioner. The judgment in W.C. Case No. 88-D of 2000 shall stand modified to that extent. In the result, the appeals are allowed in part to the extent indicated above. 36,300/- (Rupees thirty-three thousand three hundred). Accordingly, the claimant Bhagaban Behera shall be entitled to Rs. 36, 300/- along with proportionate interest instead of Rs. 48,398/- granted by the Commissioner. The judgment in W.C. Case No. 88-D of 2000 shall stand modified to that extent. In the result, the appeals are allowed in part to the extent indicated above. Appeals allowed in part.