JUDGMENT : With regard to motor accident held on 9.11.2005, the driver and the handyman of a mini bus bearing registration No.ASG-5244 (407) filed two separate claim petitions before the WC Commissioner at Nagaon. The claim petition filed by handyman was numbered as NWC Case No. 17 of 2006 whereas the same instituted by the driver was numbered as NWC Case No. 12 of 2006 by the WC Commissioner at Nagaon. Although two separate judgments have been passed in both the NWC cases but identical substantial questions of law were framed by this court at the time of admission of both the appeals. The fact involved in both the cases are same as they have arisen from the same accident involving the same vehicle. Accordingly, both the appeals are taken up together for disposal. 2. The mini bus having registration No. ASG-5244 belongs to one Thaneswar Borah of Nagaon who is stated to have engaged Prafulla Konwar as his handyman and one Dipak Bordoloi as his driver with respect to the vehicle. The vehicle was duly insured with the Oriental Insurance Co. Ltd., Nagaon branch vide policy No. 321100/2005/1698. The handyman, Prafulla Konwar was paid monthly salary of Rs.3500/- per month in addition to daily allowance of Rs.20/-. Dipak Bordoloi , the driver was paid monthly salary of Rs.4000/- per month in addition to daily allowance of Rs.20/-. On 9.11.2005, when the vehicle was moving from Roha to Nagaon with passengers, it was knocked down from behind by another moving vehicle at Bebejia and thereby both the driver and the handyman sustained injuries. The handyman stated that he sustained fracture in both the melleolus of left ankle whereas the tibia and fibula on the right leg of the driver Dipak Bordoloi are said to have been fractured. According to the handyman, he was initially taken to Nagaon Civil Hospital where his leg was plastered. He thereafter obtained treatment from one Dr. Dipesh Das. The owner on being notified appeared and submitted written statement admitting basic facts as to engagement and payment of salary to the workman and also as to happening of the accident. The owner pointed out that vehicle having been valid insurance under the opposite party No.2, he was not liable to make payment of compensation whatsoever. The insurance company though filed written statement and contested the claim but did not examine any witness. The owner pointed out that vehicle having been valid insurance under the opposite party No.2, he was not liable to make payment of compensation whatsoever. The insurance company though filed written statement and contested the claim but did not examine any witness. However, the opposite party No. 2 insurance company cross examined the witness at length. In course of trial, claimant Praffulla adduced several documents on record which includes accident information report as Exhibit-1, X-ray report as Exhibit-2, injury report as Exhibit-3, Exhibits -4 to 10 are prescriptions, Notice under Section 10 as Exhibit-11 and x-ray plate as M.Exhibit-1. He was duly cross examined by the insurance company. 3. Dipesh Das was examined as PW-2 in both the cases. He stated in NWC Case No.17 of 2006 that he examined the victim on 9.11.2006 as well as on 13.11.2006. He advised for x-ray report which he examined later on. According to him, the handyman cannot discharge his normal duty with such injuries. He opined that the handyman suffered physically disability to the extent of 30% resulting in 35 % of loss of earning capacity. He proved medical certificate Exhibit-3 to have been issued by him. 4. The same doctor was examined in NWC Case No.12 of 2006 wherein he stated that both the tibia and fibula on the right leg of driver Dipak Bordoloi were fractured resulting in 25 % physical disability and 30% loss of earning capacity. He stated that because of these injuries, the driver cannot make movement the way he could do earlier. He stated that such disablement is of permanent nature. No question was put to PW-2 in NWC Case No.12 of 2006 as to whether driver Dipak Bordoloi was in a position to drive any motor vehicle any more. No question was put to this witness in either of the case as to whether the doctor had in his mind the provisions of Schedule-1 of the Act at the time of assessing the loss of earning capacity of either of the victim. The driver being PW-1 in NWC Case No.12 of 2006 adduced a number of documents which includes accident information report,( Exhibit-1) , x-ray reports as (Exhibit-2 and )3 and injury report as (Exhibit-4), driving licence as ( Exhibit-5) copy under Section 10 as (Exhibit-6) . The driver being PW-1 in NWC Case No.12 of 2006 adduced a number of documents which includes accident information report,( Exhibit-1) , x-ray reports as (Exhibit-2 and )3 and injury report as (Exhibit-4), driving licence as ( Exhibit-5) copy under Section 10 as (Exhibit-6) . He stated that although he can walk but he is not in a position to drive any vehicle anymore. Considering the evidence on record, the WC Commissioner passed two separate judgments in NWC Case No. 17 of 2006 and NWC Case No.12 of 2006 respectively. 4. In both the cases, the WC Commissioner accepted the assessment made by the qualified medical practitioner in regard to loss of earning capacity of the victim and calculated compensation under Section 4(i) © (ii) of the Act. In NW Case No. 17 of 2006, the insurance company has been directed to make payment of Rs.1,64,640/- along with interest @ 12% per annum from the date of adjudication till realization. The compensation in case of NWC Case No.12 of 2006 has been assessed at Rs.1,53,770/- along with 12% per annum from the date of adjudication till realization. 5. Both the judgments have been challenged before this court by two separate appeals being MFA No. 78 of 2008 and MFA No.79 of 2008 respectively. This court while admitting the appeal framed identical substantial question of law which are quoted below: “Whether the learned Commissioner erred in assessing the amount of compensation in absence of any evaluation of the physical disability and the consequential loss of earning capacity by medical practitioner as required under Section 4 (1) © (ii) of Workmen’s Compensation Act, 1923?” 5. It appears that at the time of admission of the appeal, this court only issued notice on the stay prayer but did not stay the operation of the impugned judgment and award. It was only observed that till the returnable date, no amount would be disbursed to the workman. Mr. A Ahmed, learned counsel submits that he does not have any instruction as to whether the insurance company has at all deposited the awarded amount with the jurisdictional WC Commissioner. In the absence of any stay order by this court, the insurance company was supposed to make deposit to the W.C. Commissioner within a period 30 days and if this is not done , it would amount to non-compliance of a direction by the WC Commissioner. In the absence of any stay order by this court, the insurance company was supposed to make deposit to the W.C. Commissioner within a period 30 days and if this is not done , it would amount to non-compliance of a direction by the WC Commissioner. This is because by the impugned judgment and award, the insurance company was directed to make deposit within a period of 30 days. 6. I have heard Mr. A Ahmed, learned counsel for the appellant . No one has put up appearance on behalf of the opposite party although names of the learned counsel are shown in the Cause List. 7. Mr. Ahmed in his usual fairness submits at the threshold that objection as to liability of the insurance company was not specifically pleaded before the WC Commissioner and the insurance company also failed to produce the policy document. Under such circumstances, there is no material with him to argue the first substantial question of law. I have perused the records. In the written statement filed before the WC Commissioner in both the cases, the insurance company did not make any pleading that the concerned policy was an Act policy. Moreover, insurance company being custodian of records did not produce policy document by examining any witness to show that there was no payment of extra premium for the handyman who was the claimant in NWC Case No.17 of 2006. Such adjudication, of course would not have been necessary in regard to claim by the driver in NWC Case No.12 of 2006 inasmuch as the risk of a driver and a conductor is statutorily covered under the provisio to Section-147 of the M.V.Act, 1988. This being the position, the first substantial question of law is not required to be decided in either of the two appeals. 8. Coming to second substantial question of law, it is the argument of Mr. Ahmed that the learned Commissioner really did not apply his mind to argue as to whether the assessment made by qualified medical practitioner was correct or not. The WC Commissioner did not apply his mind at all and whatever is assessed by the qualified medical practitioner was accepted as gospel truth. Ahmed that the learned Commissioner really did not apply his mind to argue as to whether the assessment made by qualified medical practitioner was correct or not. The WC Commissioner did not apply his mind at all and whatever is assessed by the qualified medical practitioner was accepted as gospel truth. He submits that handyman even if not fit to change the wheel and or to load and unload goods from the vehicle has not been rendered incapable of doing any other work and so he cannot be said to have been permanently and partially disabled within the meaning of Section 2(1) (g) of the Act. The claimant in NWC Case No.17 of 2006, therefore, at best would have been entitled to compensation under section 4(1) (d) of the Act and not under Section 4(1) (c) (ii) of the Act, Mr. Ahmed argued. 9. Coming to NWC Case No. 17 of 2006, it is to be seen that the victim himself stated on oath that he was capable of being working as handyman at the time of the accident. As a handyman, he was supposed to change the wheel of the vehicle when necessary and to load and unload goods from the vehicle. He claimed that because of the the injuries suffered by him which are of permanent in nature, it is not possible for him to do any of those works in which he was capable at the time of the accident. Section 2(i) (g) defines permanent and partial disablement wherein it is provided that if the disablement reduces earning capacity in every employment which he was capable of undertaking at the time of the accident, the same would be of permanent nature. The word ‘employment’ occurring in Section-2 (i) (g) refers to the nature of engagement. In case of handyman, his capacity to do work as a handyman or work of similar nature may come within the meaning of ‘every employment’. This would definitely not mean an employment in any other sphere like agricultural work or household works. He being an employee of the bus was accustomed to work in changing of wheel, loading and unloading goods. He claimed that because of the nature of injuries, he was not in a position of doing this works. The doctor said that he lost his earning capacity resulting in consequent efficiency of doing this job. He being an employee of the bus was accustomed to work in changing of wheel, loading and unloading goods. He claimed that because of the nature of injuries, he was not in a position of doing this works. The doctor said that he lost his earning capacity resulting in consequent efficiency of doing this job. That being the position, the doctor being an expert assessed that he had lost earning capacity to the extent of 35 %. The WC Commissioner is not an expert in the subject. He is duty bound under Section 4-(1) © (ii) to rely on the assessment made by the doctor unless such assessment is wholly absurd or untenable in the eye of law of ordinary man of prudence. The case in hand so far as it relates to NWC Case No.17 of 2006 does not appear to have come to such an extreme category where the WC Commissioner ought not to have accepted the assessment made by a qualified medical practitioner. The second substantial question of law in regard to MFA No.78 of 2008 therefore hasto be decided in favour of the workman and against the appellant and it is accordingly decided. 10. In MFA No. 79 of 2008 arising out of the same accident a certificate of disability has been given by same doctor and thereby the claimant is stated to have suffered 25% physical disability because of fracture of both tibia and fibula of right legs. Claimant in this case was a driver and he was capable of driving the vehicle at the time of the accident. This is a matter of general experience that use of right leg is of utmost importance in driving a vehicle inasmuch as the same is required for accelerating as well as applying brakes. The right leg has to be efficient and of sufficient reflex for the purpose of driving a vehicle. This is why in course of cross examination a suggestion was given to the claimant himself that he is in a position to drive the vehicle. The claimant replied specifically that the suggestion was incorrect and he was not capable of driving vehicle anymore. It is under such circumstances, the doctor assessed loss of his earning capacity at 30%. This is why in course of cross examination a suggestion was given to the claimant himself that he is in a position to drive the vehicle. The claimant replied specifically that the suggestion was incorrect and he was not capable of driving vehicle anymore. It is under such circumstances, the doctor assessed loss of his earning capacity at 30%. Perusal of the cross examination of PW-2 (Dr.D Das) does not reveal that any question was put to this witness as to whether the claimant can drive the vehicle any more. No question was put to him as to whether provision of Schedule-1 of the Act was there in the mind of the doctor when he had issued the disability certificate. No such question has been put to the doctor or to the claimant to show that the assessment made by the qualified medical practitioner is either absurd or impossible one. This being the position, the WC Commissioner does not appear to have committed any mistake in passing the award on the basis of assessment made by the qualified medical practitioner as to loss of earning capacity of the driver in NWC Case No.12 of 2006. The second substantial question of law, therefore, is decided in favour of the workman and against the appellant in MFA No.79 of 2008 as well. Accordingly, both the appeals stand dismissed. No order as to cost. Send down the records immediately.