JUDGMENT B.P. Katakey, J. 1. This appeal by the Insurance Company, is directed against the award dated 10th November, 2003 (signed on 12th November, 2003) passed by the learned Commissioner, Workmen's Compensation, Kamrup at Guwahati, in W.C. Case No. 56/2002, awarding an amount of Rs. 89,000/- as compensation with interest @ 9% per annum from the date of the order till the date of realization and directing the appellant-Insurance Company to satisfy the said award as there is a contract of insurance between the employer and the Insurance Company. The respondent No. 1/workman filed an application under the provisions of the Workmen's Compensation Act, 1923 (now Employees' Compensation Act, 1923) claiming compensation contending that while he was discharging his duties as cleaner of the vehicle bearing Registration No. AMP-1994 (Bus) belonging to the respondent No. 2, the said bus met with an accident at Dahalapara under Bijni Police Station on National Highway No. 31 on 19th February, 2002 and as a result of which he sustained injuries arising out of and in course of his employment as cleaner. It has also been contended that he was at the relevant point of time 27 years old and paid monthly wage of Rs. 3,500/-, which includes the daily allowance. The further contention was that for the injuries sustained by him, he was treated at Barpeta Civil Hospital. 2. The said proceeding was contested by the owner as well as by the Insurance Company by filing separate written statements. The owner in his written statement admitting the accident has contended that the workman was paid Rs. 200/- per month as monthly wage and Rs. 110/- as daily allowance. It has also been pleaded that the risk of the owner has been insured by the appellant-Insurance Company and as such any amount found to be due and payable as compensation has to be paid by the Insurance Company under the contract of insurance. 3. The appellant-Insurance Company in the written statement filed has denied the employment of the workman, the injuries sustained by him, involvement of the vehicle in such accident and put the workman to the strictest proof thereof. 4. The respondent No. 1/workman in support of his claim apart from examining himself also examined Dr. Suresh Ch. Sarma as witness No. 2. The appellant-Insurance Company in the written statement filed has denied the employment of the workman, the injuries sustained by him, involvement of the vehicle in such accident and put the workman to the strictest proof thereof. 4. The respondent No. 1/workman in support of his claim apart from examining himself also examined Dr. Suresh Ch. Sarma as witness No. 2. 4(four) documents were also proved, those being prescriptions (Exts.-1A and 1-B), medical certificate (Ext.-2), X-ray report and X-ray plate (Ext.-3) and police report (Ext.-4). The witnesses examined by the workman were duly cross-examined by the Insurance Company. No evidence, however, was led by the Insurance Company and the employer though they have filed their respective written statements. 5. The learned Commissioner upon appreciation of the evidences on record as adduced by the respondent No. 1/workman, has come to the finding that because of the accident occurred, the workman sustained injuries, resulting in 35% loss of earning capacity, arising out of and in course of his employment as cleaner. The learned Commissioner also found that the workman was at the relevant point of time 27 years old and his monthly wage was Rs. 3,500/-. The learned Commissioner, therefore, in view of the provisions contained in Section 4(1)(c)(ii) of the Act has awarded an amount of Rs. 89,000/- as compensation. Hence, the present appeal. 6. I have heard Mr. S.S. Sharma, learned Sr. Counsel for the appellant and Mr. S. Dutta, learned Counsel appearing for the respondent No. 1/workman. None appears for the respondent No. 2 despite service. 7. Though the appeal was admitted for hearing vide order dated 13th February, 2004, since no substantial question of law was formulated, upon hearing the learned Counsel for the parties and upon consideration of the impugned award the following substantial question of law has been formulated today for hearing of the appeal : Whether the learned Commissioner, Workmen's Compensation, in view of the evidence of the witness No. 2 i.e. Dr. Suresh Ch. Sarma, was justified in taking the percentage of loss of earning capacity of the respondent No. 1/workman as 35%? 8. As agreed to by the learned Counsel for the appearing parties, the appeal is taken up for hearing today itself. The learned Counsel appearing for the parties are, therefore, heard on the aforesaid substantial question of law. 9. Suresh Ch. Sarma, was justified in taking the percentage of loss of earning capacity of the respondent No. 1/workman as 35%? 8. As agreed to by the learned Counsel for the appearing parties, the appeal is taken up for hearing today itself. The learned Counsel appearing for the parties are, therefore, heard on the aforesaid substantial question of law. 9. Referring to the evidence of the doctor, the witness No. 2, it has been submitted by Mr. Sharma, learned Sr. Counsel for the appellant that the learned Commissioner ought not to have placed any reliance on his evidence as well as the medical certificate issued by the doctor being Ext-2, as the doctor during cross-examination has admitted that the said certificate was issued even before examination of the respondent No. 1/workman, certifying that the percentage of loss of earning capacity of the respondent No. 1/workman was 45%. It has also been submitted that taking into account the injuries sustained by the respondent No. 1/workman it is evident that there was absolutely no loss of earning capacity, keeping in view the nature of job he has to perform and as such the award passed by the learned Commissioner needs to be set aside. Mr. Sharma, however, in his usual fairness, has submitted that, pursuant to the interim order passed by this Court on 24th August, 2005 in Misc. Case No. 2224/2005, 50% of the awarded amount i.e. Rs. 44,500/- has already been withdrawn by the respondent No. 1/workman and as such the Insurance Company would not insist for recovery of the said amount, keeping in view the fact that the respondent No. 1 is a poorly paid employee. 10. Mr. Dutta, learned Counsel appearing for the respondent No. 1/workman, on the other hand, supporting the impugned award passed by the learned Commissioner has submitted that in view of the medical certificate being Ext.-2, no illegality has been committed by the learned Commissioner in awarding an amount of Rs. 89,000/- as compensation. According to Mr. 10. Mr. Dutta, learned Counsel appearing for the respondent No. 1/workman, on the other hand, supporting the impugned award passed by the learned Commissioner has submitted that in view of the medical certificate being Ext.-2, no illegality has been committed by the learned Commissioner in awarding an amount of Rs. 89,000/- as compensation. According to Mr. Dutta, since a registered medical practitioner has issued the certificate certifying the percentage of loss of earning capacity of the workman, because of the accident, as 45%, as required under Section 4(1)(c)(ii) of the Act, the learned Commissioner ought to have taken the loss of earning capacity as 45% and not 35% as has been done and consequently according to the learned Counsel the workman is entitled to more than what has been awarded by the learned Commissioner. 11. I have considered the submissions of the learned Counsel appearing for the parties and also perused the records both oral and documentary, as adduced by the respondent No. 1/workman. 12. In the present case the factum of accident, injuries sustained by the respondent No. 1/workman arising out and in course of his employment, the nature of injuries as well as the monthly wages and the age of the workman, apart from the contract of insurance are not in dispute. The only question raised in the present appeal is the percentage of loss of earning capacity as certified by Dr. Suresh Ch. Sarma, witness No. 2. It is evident from the materials made available on records that the said doctor on 28th February, 2002 issued the certificate (Ext.-2) certifying the percentage of loss of earning capacity of the respondent No. 1/workman as 45%. During cross-examination the doctor admitted that he did not examine the respondent No. 1 on 28th February, 2002, who, however, was examined on 31st March, 2002. He has also admitted that the certificate was issued even before removal of the plaster. It has also not been stated by the doctor that either on 28th February, 2002 or immediately before that another X-ray was taken to assess the condition of the injuries sustained by the respondent No. 1/workman. He has also admitted that the certificate was issued even before removal of the plaster. It has also not been stated by the doctor that either on 28th February, 2002 or immediately before that another X-ray was taken to assess the condition of the injuries sustained by the respondent No. 1/workman. Since, such certificate was issued even without examining the respondent No. 1/workman, the learned Commissioner ought not to have placed any reliance on the said certificate (Ext.-2) and assessed the loss of earning capacity of the workman as 35%, in the absence of any other materials available on record. 13. Be that as it may, since the factum of accident and the nature of injuries sustained by the respondent No. 1/workman in course of his employment are not in dispute and an amount of Rs. 44,500/- has already been released in his favour pursuant to the aforesaid interim order, the quantum of compensation as assessed by the learned Commissioner is reduced to the amount already paid to the respondent No. 1/workman. 14. The award dated 10th November, 2003 passed by the learned Commissioner is accordingly stands modified. The remaining amount of Rs. 44,500/- shall forthwith be refunded to the appellant-Insurance Company by the learned Commissioner. The appeal is accordingly allowed to the extent as indicated above. No costs. Appeal allowed.