ORDER : 1. In this appeal under Section 30 of the Workmen’s Compensation Act, 1923 (now designated as Employees Compensation Act, 1923 and hereinafter referred to as Act), the United India Insurance Company Ltd. has challenged the judgment and award dated 13.6.2005 passed by the learned W.C. Commissioner, Nagaon in NWC Case No. 129 of 2002. By that judgment and award, the learned WC Commissioner directed the insurance company to make payment of Rs. 1,17,131/- alongwith interest @ 12 % per annum with effect from the date of accident. 2. One Md. Ismail Hussain made a claim before the W.C. Commissioner at Nagaon stating that while discharging duty as a cleaner of the bus bearing registration No. AMP-121 belonging to one Nani Gopal Goswami of Amolapatty, Nagaon, he sustained injury on his person when the bus had turned turtle on 15.5.2002 at Saidoria PWD road while proceeding to Rupahihat. He was taken to B.P. Civil Hospital, Nagaon by the police and was given first aid. Later on he was treated by Dr.Durgeswar Bora of Nagaon. According to the claimant Rupahihat PS GDE Entry No. 295 was registered by police on 15.5.2002 itself in connection with the aforesaid vehicle accident. Claimant wanted compensation from his employer, Opposite party No. 1 who refused to part with money for which filing of the claim under the Act became necessary. According to the claimant he was drawing salary of Rs. 1500/- per month and a daily allowance of Rs. 90/- and that he was 25 years. 3. On being summoned, opposite party No. 1 owner appeared but did not contest the claim and did not file written statement. However, opposite party No. 2, insurance company submitted written statement denying the case of the claimant and prayed that the claim petition be dismissed. The W.C. Commissioner did not frame issues but asked the parties to prove their respective case by adducing evidence. Tthe claimant examined h9imself as well as Dr. Durgeswar Das as CW-1 and CW-2 respectively. The insurance company did not lead any evidence but cross examined the witnesses at length. Upon consideration of the evidence led by the claimant, the WC Commissioner arrived at the view that claimant was engaged by the opposite party No. 1 as a cleaner in the vehicle and that he sustained injury on his person owing to motor vehicle accident held on 15.5.2002. Upon consideration of the evidence led by the claimant, the WC Commissioner arrived at the view that claimant was engaged by the opposite party No. 1 as a cleaner in the vehicle and that he sustained injury on his person owing to motor vehicle accident held on 15.5.2002. The W.C. Commissioner held that the claimant had sustained fracture injury on 8th, 9th and 10th ribs of chest and that there was a fracture on the metaphyseal region of right radius bone. Although CW-2 being qualified medical practitioner opined that the claimant had sustained disability to the extent of 20% resulting in 40% loss of earning capacity, the WC Commissioner downplayed the opinion and held that the victim had lost earning capacity to the tune of 30%. The claimant did not adduce any evidence. WC Commissioner presumed that the workman was 25 years of age and accordingly made the assessment of compensation of Rs. 1,71,131/- . Over and above this amount, he passed an order for paying interest @ 12% per annum w.e.f. from the date of accident till realization. This judgment and award passed on 13.6.2005 has been called in question in the present appeal. 4. This court while admitting the appeal on 26.7.2006 framed the following three substantial question of law: (1) Whether the claimant not having suffered any permanent partial disablement within the meaning of the expression as used in the Workmen’s Compensation Act, 1923 and in the absence of any finding reached in that regard in accordance with law, the Commissioner below had acted legally in computing the quantum of compensation as per the provision of Section 4(1)(a) and not 4(1) (d) of the Workmen’s Compensation Act, 1923 as amended up to date? (2) Whether, the Commissioner had acted legally in passing the impugned judgment and award by adopting some more or method not provided in the Workmen’s Compensation Act, 1923 and on the basis of the evidence of a Doctor who not being an Orthopedic Surgeon and a qualified medical practitioner as defined under the Section 2(i) of the Workmen’s Compensation act, 1923 was not competent to assess the alleged disability and/or loss of earning capacity of the claimant? (3) Whether, the liability to pay interest over the awarded sum not being a statutory liability of the Insurer under Section 4A(3) of the Workmen’s Compensation Act, 1923, the Commissioner below had acted legally and justifiably in directing the appellant to pay interest over the amount of compensation awarded by him? 5. I have heard Mr. S Dutta, learned counsel for the appellant. No one has put up appearance on behalf of the respondent although notices were duly served. Mr. S Dutta submits at the threshold that he would not press substantial question No. 2 and would place the substantial question No. 1 and 3. I have heard Mr. S Dutta, learned counsel on this ground and I have perused the LCR including the pleadings of the parties and the evidence adduced by them. According to Mr. Dutta, the WC Commissioner acted illegally and without jurisdiction in presuming that workman had lost 30% earning capacity independent of the assessment made by the qualified medical practitioner. According to him workman himself having admitted in course of cross examination that apart from working as a cleaner he was also pursuing job of agricultural worker at the relevant time, the same did not receive any consideration of the W.C. Commissioner while making assessment of compensation. Had the same been considered the W.C. Commissioner would not have made assessment under 4(i)(a) (ii) of the Act as it is contrary to the definition of permanent and partial disability under Section 2(i) (g) of the Act. If the workman has not lost its earning capacity in respect of every employment he was skilled in the relevant time he cannot be said to have been permanently and partially disabled. In that event, it would have been a case under Section 4 (1) (d) of the Act. He further submits that W.C. Commissioner allowed 12% upon the compensation amount w.e.f. from the date of the accident which is in contravention of Section-4(A) of the Act. With these submissions, he argued that the impugned judgment and award be set aside and the matter be remanded back to the trial court for decision afresh. 6. The claimant examined himself as CW-1. He stated that he has been suffering from continuous pain on his chest and find difficulty in taking breath. He also find difficulty to make movement of the right hand for which he has submitted the claim for compensation. 6. The claimant examined himself as CW-1. He stated that he has been suffering from continuous pain on his chest and find difficulty in taking breath. He also find difficulty to make movement of the right hand for which he has submitted the claim for compensation. He proved Exhibit-1 accident information report, x-ray report as Exhibit-2 and preliminary certificate as Exhibit- 3. Exhibits- 4 to 11 are prescriptions and Exhibit-12 to 15 are the postal receipts of the AD cards etc. In course of cross examination he states that prior to accident, he used to work as agricultural worker at home. He claimed that he was in Nagaon hospital for treatment for one day but could not produce any paper to show any admission or discharge paper from the hospital. He claimed that after going out from the hospital, he went to Dr. Drugeswar Bora . But he could not recollect as to what medicine he was taking at the time of deposition . The insurance company in course of cross examination gave suggestion that he did not sustain any injury during the accident or that he was not drawing salary of Rs.4200/- from Nani Gopal Goswami as cleaner. He admitted that he could not produce the x-ray plate showing fracture of his right hand. 7. Dr. Durgewar Bora was examined as CW-2. He stated on oath that he had examined the victim on 15.5.2002 at Nagaon Civil Hospital and thereafter he used to examine him as and when the victim used to attend his private chamber. He found tenderness in the right chest and tenderness and restriction of movement of right wrist joint. According to him as per the x-ray there was fracture on 8th, 9th and 10th ribs and there was also fracture on the lower metaphyseal region of his right radius. He opined that there was suddeck dystrophy and chronic chest pain owing to the accident for which the workman became permanently disabled to the extent of 20% for which he lost 40% of his earning capacity. In course of cross examination, he stated that he had advised the claimants to undergo x-ray after 21 days of the accident but the same is not available on record. He had advised the claimant to have exercise and to consult Orthopedic surgeon as he was only a general surgeon. In course of cross examination, he stated that he had advised the claimants to undergo x-ray after 21 days of the accident but the same is not available on record. He had advised the claimant to have exercise and to consult Orthopedic surgeon as he was only a general surgeon. But he has not come across any paper to show that claimant had consulted an Orthopedic surgeon. He further opined that rib fracture normally gets healed and pain owning to such injury also gets ameliorated on treatment. The physical disability certified by him to be 20% is not acceptable in terms of provision of Section 1 to the Act. According to him, claimant must have been 25 years of age. However, in reply to a specific pointed question, he stated that the injury caused on the person of the claimant could have been resulted from any other cause except motor vehicle accident. 8. From perusal of the evidence adduced by the claimant it appears that the claimant did not prove the x-ray plate to show that he had really suffered from fracture on 8th , 9th and 10th ribs or there was fracture on the lower metaphyseal region of his right radius Although in his evidence he has stated that injury sustained by him on the forelimb is on the right hand but there is nothing on the record to hold as to which part of the chest had been fractured because of the accident. Even correctness or otherwise of the x ray report is not supported by producing x ray plate. Assuming for the time being that the claimant has sustained fracture injury on his 8th, 9th and 10th ribs, in the evidence of Dr. Durgeswar Bora (CW-2) fracture is likely to be healed on treatment. Apart from that on his own showing the workman has disclosed that he was also working as an agricultural worker prior to the accident. This statement of the workman has found place in the judgment and award passed by the Commissioner. But even after so recording, the W.C. Commissioner has not proceeded to consider as to the effect of such statement. This means that prior to the accident, the workman/claimant was pursuing two occupations or he was capable of pursuing two occupations. While one occupation was working as a cleaner in a bus, his another occupation was as an agricultural worker. But even after so recording, the W.C. Commissioner has not proceeded to consider as to the effect of such statement. This means that prior to the accident, the workman/claimant was pursuing two occupations or he was capable of pursuing two occupations. While one occupation was working as a cleaner in a bus, his another occupation was as an agricultural worker. This statement of the claimant disclosing the area of different occupations assumes importance because of the definition of partial disablement provided under Section 2(i)(g) of the Act. This section provides that where the disablement is of permanent nature which has reduced earning capacity in every employment which the victim was capable of undertaking at ‘that time’. Obviously, by referring to ‘that time’ in Section 2(i)(g), legislature referred to the time of the accident. Although, insurance company did not lead any evidence but workman having disclosed that he was capable of undertaking another employment at that time, he has not led any evidence to show that his earning capacity in so far his second ability or employment has not been adduced. In the absence of such evidence, the W.C. Commissioner fell in error in holding that the claimant was entitled to compensation under Section-4 (1)(c) (ii) of the Act because he had been permanently and partially disabled. With the materials available on 9. The second substantial question is in regard to interest at @ 12 % from the date of the accident. Mr. S Dutta, learned counsel for the appellant places reliance on the Judgment of the Hon’ble Supreme Court in the case of Oriental Insurance Co. Ltd. vs. Md. Naseer & Another, 2009 (6) SCC 280 . Placing para 49 of the judgment, the learned counsel submits that the WC Commissioner at best could have allowed interest @ 7 ½ % from the date of institution of the claim till the date of adjudication and after expiry of the 30 days from the date of adjudication @ 12 % per annum provided the awarded amount is not deposited. But by the impugned judgment and award, the WC Commissioner without taking into consideration the provision of Section-4 A of the Act allowed interest at 12% from the date of the accident which according to the learned counsel is not permissible. But by the impugned judgment and award, the WC Commissioner without taking into consideration the provision of Section-4 A of the Act allowed interest at 12% from the date of the accident which according to the learned counsel is not permissible. I have perused the provision of Section 4-A of the Act as well the judgment of the Hon’ble Supreme Court in the case of Oriental Insurance Co. Ltd. vs. Md.Naseer & Another (supra) and find that the submission of Mr. S Dutta has force. Accordingly, the judgment and award in so far as it relates to interest part is hereby set aside. The Third substantial question of law is decided in favour of the appellant. 10. Both the substantial questions of law having been decided in favour of the appellant, the impugned judgment is hereby set aside and the matter is remanded to the learned trial court to make assessment of compensation afresh in accordance with the provision of law as well as the judgment of this court in the case of National Insurance Company Ltd. vs. Bimal Nath, 2009 (1) GLT 370. 11. Mr. S. Dutta submits that the whole of the awarded money has been deposited with the jurisdictional W.C. Commissioner by the insurance company already and there is likelihood that some part of the amount if not whole must have been disbursed to the claimant. The amount which has not been disbursed to the workman shall not be disbursed before the matter is decided afresh.