ORDER 1. First respondent filed a claim petition under Workmen's Compensation Act, 1923 (for short - 1923 Act'), for Rs.1,50,000/- against the second respondent and the appellant alleging that he was employed as a coolie on a lorry belonging to the second respondent and insured with the appellant and that on 10.05.1996, he, while working on that lorry, accidentally fell down and sustained injuries, and as he sustained those injuries in an accident arising out of and during the course of employment, he is entitled to the compensation claimed. Second respondent filed his counter admitting that the first respondent was under his employment and that he suffered injuries in the accident and that the appellant who is the insurer of his lorry is only liable to pay the compensation payable to the first respondent. Appellant filed its counter inter alia contending that the first respondent is not the employee of the second respondent and in any event as the insurance policy issued by it does not cover the risk of the employees travelling in the lorry of the second respondent it is not liable to pay any compensation. In support of his case, first respondent examined himself as A.W.1 and marked Exs.A.1 to A.6. No evidence either oral or documentary was adduced on behalf of the second respondent. The Commissioner, holding that the first respondent suffered injuries in an accident that arose out of and during the course of employment and suffered disability, awarded Rs.25,000/- as compensation to the first respondent under Section 140 of the Motor Vehicles Act, 1988 (for short - 1988 Act'). Questioning the said award, the insurer preferred this appeal. 2. The main contention of the learned counsel for appellant is that inasmuch as the policy of insurance issued by the appellant did not cover the risk of first respondent, who, in fact, is not employed by the second respondent, question of making the appellant liable for payment of the compensation payable to the first respondent does not arise. 2. The main contention of the learned counsel for appellant is that inasmuch as the policy of insurance issued by the appellant did not cover the risk of first respondent, who, in fact, is not employed by the second respondent, question of making the appellant liable for payment of the compensation payable to the first respondent does not arise. It is also his contention that the learned Commissioner was in error in applying the provisions of Section 140 of the 1988 Act to the case because the case was filed under the provisions of the 1923 Act and the compensation payable under 1923 Act can be fixed only by following the principles laid down in the said Act but not by taking recourse to the provisions of 1988 Act. It is also his contention that there is no record to show that in fact first respondent suffered any fracture or sustained any disability or was inpatient in any hospital and so in any event the first respondent is not entitled to seek any compensation from the appellant. 3. There is no representation on behalf of the first respondent both on 13.06.2008 when the matter was heard in part and today also when the case is listed for further hearing. 4. Ex.A.6, copy of the insurance policy issued by the appellant, marked by the first respondent shows that the second respondent paid a premium of Rs.1,245/- towards liability to 'Public risk' and did not pay any premium to cover the risk of any of his employees travelling in the lorry. In view of the proviso to Section 147(1) of the 1988 Act, the second respondent who had an option either to take out a policy to cover the risk of his employees or not, chose not to take a policy covering the risk of his employees in the lorry. Unless and until the appellant (insurer) takes up the responsibility to cover the risk of the employees of second respondent, question of making it liable to pay any compensation to the employees of the second respondent does not arise. 5. Inasmuch as Ex.A.6 insurance policy issued by the appellant does not cover the risk of the employees of the second respondent, the Commissioner was in error in making the appellant also liable to pay the compensation payable to the first respondent. 6. 5. Inasmuch as Ex.A.6 insurance policy issued by the appellant does not cover the risk of the employees of the second respondent, the Commissioner was in error in making the appellant also liable to pay the compensation payable to the first respondent. 6. As rightly contended by the learned counsel for appellant there is no evidence on record to show that the first respondent, in fact, suffered any disability as a result of the accident because no documentary evidence, showing that he suffered a fracture or fractures and thereby sustained a disability either temporary or permanent is produced by him. Ex.A.1 is a true copy of the Intimation of accidents and injuries to the police. Ex.A.2 is a true copy of the First Information Report. They only show that the first respondent suffered injuries but do not give nature of the injuries suffered by him i.e. whether they are simple or grievous. Ex.A.3, chit issued by the Government Hospital, shows that the first respondent was advised to get X-Rays for the swelling found on his ankle. Exs.A.4 and A.5 are two X-Rays, without the report of the Radiologist. From Exs.A.4 and A.5 X-rays, we cannot say whether the first respondent suffered a fracture or not because the report of the radiologist is not placed on record. There is also no record to show that first respondent was an inpatient in the hospital. If the first respondent really was an inpatient, he should have taken steps for production of the case sheet relating to him, to enable the Commissioner to find out the nature of the injuries suffered by him and the period during which he underwent treatment in a hospital so that the period of his temporary disability could be known. Obviously because the first respondent did not adduce any evidence to show the nature of injuries suffered by him or about the disability suffered by him, the Commissioner, without giving any finding on the nature of the injuries suffered by the first respondent, awarded Rs.25,000/- on an assumption that the first respondent suffered a permanent disability as a result of the accident. 7. The Commissioner was in error in applying the provisions of the 1988 Act to a claim made under the 1923 Act. 7. The Commissioner was in error in applying the provisions of the 1988 Act to a claim made under the 1923 Act. Compensation payable under the 1923 Act has to be determined as per the principles laid down in the said Act but not on the basis of the provisions of the 1988 Act. So, the Commissioner was in error in applying Section 140 of the 1988 Act and awarding Rs.25,000/- as compensation to the first respondent under 1923 Act that too when there is no evidence on record to show that the first respondent, in fact, suffered a disability of the type mentioned in Section 142 of the 1988 Act. 8. Inasmuch as the second respondent did not question the award passed by the Commissioner against him and did not even choose to appear before this Court, the award passed by the Commissioner against the second respondent binds him. 9. For the reasons stated above, the appellant cannot be made liable to pay the compensation payable to the first respondent but first respondent is entitled to claim the amount from the second respondent. The point is answered accordingly. 10. In the result, the appeal is allowed and the order passed by the Commissioner against the appellant is set aside. It is made clear that the first respondent is entitled to receive compensation awarded to him from the second respondent. Parties are directed to bear their own costs.