ORDER : 1. One Sushil Dutta owned a truck bearing registration No. ASJ-9574 and engaged Md. Abdul Kalam, Md. Akbar Ali and Md. Nasiruddin as employees with respect to the said vehicle. Md. Abdul Kalam was engaged at a monthly salary of Rs. 1,000/- and a daily allowance of Rs. 100/- for loading and unloading goods in the vehicle. Md. Akbar Ali was engaged as a cleaner in the vehicle at a monthly salary of Rs. 1,500/- in addition to a daily allowance of Rs. 80/-. Similarly, Md. Nasiruddin was engaged as a labourer at a monthly salary of Rs. 1,000/- in addition to a daily allowance of Rs. 100/- for loading and unloading goods from the truck. On 07.02.2002 when the vehicle was moving from Bamuni towards Nagaon Town in a loaded condition with all the aforesaid 3 (three) workers on board, it met with an accident at about 6.30 p.m. due to collision with another vehicle which was coming from opposite direction. Because of the accident, all the three employees sustained injuries on their persons resulting in permanent partial physical disabilities and consequently they lost earning capacity substantially. According to Abdul Kalam, he sustained physical disability to the extent of 30% causing 45% loss of earning capacity. Md. Akbar Ali claimed that he sustained physical disability to the extent of 25% resulting in 35% loss of earning capacity. According to Nasiruddin, he suffered physical disability to the extent of 20% and lost 40% earning capacity. 2. All these workmen submitted three different claim petitions before the W.C. Commissioner at Nagaon and three different W.C. cases were registered. The W.C. cases registered at the instance of Md. Abdul Kalam, Md. Akbar Ali and Md. Nasiruddin are N.W.C. Case No. 50 of 2002, N.W.C. Case No. 92 of 2002 and N.W.C. Case No. 51 of 2002 respectively. On being notified, the opposite party No. 1 owner did not appear and did not file any written statement. Consequently, all the three proceedings were held ex-parte against the opposite party No. 1. However, opposite party No. 2 in all the three cases (National Insurance Company Limited), appeared and submitted written statement denying all the averments of fact made in the application and prayed that the three claim cases be rejected. 3. Consequently, all the three proceedings were held ex-parte against the opposite party No. 1. However, opposite party No. 2 in all the three cases (National Insurance Company Limited), appeared and submitted written statement denying all the averments of fact made in the application and prayed that the three claim cases be rejected. 3. The stand taken by the insurance company is that the claim petition did not disclose all necessary material particulars and relevant documents were not annexed. The employer employee relationship between the three claimants and the opposite party No. 1 was also denied by the insurance company. Apart from that, the factum of accident, the age and monthly wage paid by the owner Sushil Dutta was denied by the opposite party No. 2, insurance company. However, in paragraph 12 of the written statement it was admitted that the vehicle in question was insured with the opposite party No. 2 at the relevant time and liability, if there be any, would be only limited and subject to conditions mentioned in terms and conditions of the policy. 4. The W.C. Commissioner upon receipt the pleadings of the parties allowed them to lead evidence in favour of their respective cases whereupon all the three claimants examined themselves in addition to their respective doctor. 5. In N.W.C. Case No. 50 of 2002, out of which the present MFA No. 15 of 2004 has arisen, the workman stated that he was engaged as a labourer with respect to the vehicle bearing registration No. ASJ-9574 belonging to Sushil Dutta at a monthly salary of Rs. 1,000/- in addition to daily allowance of Rs. 100/- and that he had been working. He reiterated the averments made in the claim petition that on 07.02.2002, the vehicle had met with an accident when another vehicle coming from opposite direction collided head on with their vehicle for which he fell down from the vehicle and received injuries on his chest and the waist. According to him even after having received treatment from Dr. Anil Lalung, he was not totally cured and so he prayed that compensation of Rs. 2,00,000/- be granted to him. He adduced as many as 17 documents including accident information report (Ext. 1), X-ray report (Ext. 2), medical certificate (Ext. 3), prescriptions (Ext. 4 – Ext. 10), cash memos for purchasing medicine and other expenditure (Ext. 11 – Ext. Anil Lalung, he was not totally cured and so he prayed that compensation of Rs. 2,00,000/- be granted to him. He adduced as many as 17 documents including accident information report (Ext. 1), X-ray report (Ext. 2), medical certificate (Ext. 3), prescriptions (Ext. 4 – Ext. 10), cash memos for purchasing medicine and other expenditure (Ext. 11 – Ext. 13), postal A/D cards for notice under section 10 (Ext. 14 – Ext. 16) and copy of the notice (Ext. 17). He also exhibited X-ray plate as material exhibit as Ext. 1. He was thoroughly cross examined by the insurance company. The owner, however, did not appear and did not cross examine the witness. A suggestion was given to him by the insurance company that he was not given any appointment letter by the owner of the vehicle and that the driver did not have a valid driving licence when the vehicle met with accident. However, he did not deviate from his original statement made in examination-in-chief that he has injuries on his person because of the accident. He disclosed that initially he was admitted to Nagaon Civil Hospital and thereafter he was treated by Dr. Anil Lalung, who issued Ext. 3 disability certificate to him. He denied that he has been working as labourer even at the time of deposition and he mentioned that he has not been fully cured. 6. Dr. Anil Lalung, on being examined as PW 2, testified that he had examined the workman after the accident and asked him to undergo X-ray examination. Having examined the report he found that the workman had suffered communited fracture at the neck of right femur and fractures on the 6th rib on the right side. According to him, because of the accident subsequently arthritis developed to his hip joint apart from respiratory trouble for which he had developed 30% physical disability and consequently, he lost his earning capacity to the extent of 45%. He proved medical certificate Ext. 3 to have been issued by him. In course of cross examination, no question was put to this witness as to the provision of Schedule I to the Workmen’s Compensation Act, 1923 (now re-designated as Employees’ Compensation Act, 1923 and hereinafter referred to as ‘the Act’) at the time he had issued the certificate testifying physical disability and loss of earning capacity. In course of cross examination, no question was put to this witness as to the provision of Schedule I to the Workmen’s Compensation Act, 1923 (now re-designated as Employees’ Compensation Act, 1923 and hereinafter referred to as ‘the Act’) at the time he had issued the certificate testifying physical disability and loss of earning capacity. It appears that even after prolonged cross examination, the qualified medical practitioner did not deviate from his opinion given in Ext. 3, disability certificate. Considering these materials available on record, the W.C. Commissioner by his judgment and award dated 05.05.2003, arrived at the finding of the fact that there was an employer employee relationship between the workman and the opposite party No. 1 owner, that the workman had suffered injury in road traffic accident in course of his employment and thereby he sustained physical disability resulting in loss of earning capacity to the extent of 45%. The W.C. Commissioner held that claimant was 27 years of age at the time of accident and he was drawing monthly wage of Rs. 3000/-. With these findings, compensation under section 4(1)(c)(ii) of the Act, was made as follows:- 45% of Rs. 1800/- x 213.57 = Rs. 1,72,991.70 Which was rounded off to Rs. 1,72,992/-. Having found that the vehicle was duly insured with the opposite party No. 2, the W.C. Commissioner directed the insurance company to make payment of compensation within a period of 30 days along with interest at the rate of 9% per annum from the date of accident till realisation. As against this judgment, the insurance company has preferred MFA No. 15 of 2004 before this court. The appeal was admitted on 17.11.2008 but no substantial question of law was framed at the time of admission. 7. In N.W.C. Case No. 92 of 2002, workman Md. Akbar Ali examined himself as PW 1 and reiterated the same facts mentioned in his claim petition. He maintained that on 07.02.2002, the vehicle bearing registration No. ASJ-9574 was moving from Bamuni towards Nagaon where it met with an accident on N.H. 37 and consequently he sustained physical injuries. He claimed that he was being paid Rs. 1,500/- in addition to daily allowance of Rs. 80/-. According to him, he was working as handyman in the vehicle and he was 24 years of age. He claimed that he was being paid Rs. 1,500/- in addition to daily allowance of Rs. 80/-. According to him, he was working as handyman in the vehicle and he was 24 years of age. At the night of accident, he was taken to Nagaon Civil Hospital and 3/4 days thereafter he went to the chamber of Dr. Anil Lalung for treatment. He claimed that he got his ribs fractured because of the accident and even now he is not in a position to work as a handyman anymore. Under such circumstances, he claimed compensation of Rs. 2,00,000/-. He exhibited as many as 12 documents like accident information report (Ext. 1), X-ray report (Ext. 2), medical certificate (Ext. 3), notice copy (Ext. 4), postal receipts (Ext. 5 – Ext. 8) and prescriptions (Ext. 9 – Ext. 12). In course of cross examination, he denied the suggestion that he has been still working as a handyman in the vehicle. He stated that his job was to keep the vehicle clean but because of the accident he was not in a position to do his job anymore. 8. He also examined Dr. Anil Lalung as PW 2 in his case who testified that upon examination of the X-ray plate and X-ray report, he arrived at the finding that the workman had been disabled to the extent of 25% and according to him the workman must have lost 35% of earning capacity because of the injuries sustained by him. He proved the medical certificate to have been issued by him. In course of cross examination, he disclosed that on 16.02.2002 he had examined the workman for the first time and one month thereafter when the workman had come for check up, he asked him to get X-rayed and also for getting plaster on his chest. He said that the workman must have come 5 times during the whole period and he denied that the X-ray report as well as the X-ray plate is not related to the injuries sustained by the workman. He said that chronic Costo Chondritis initially detected when the claimant visited his chamber for the first time. He said that the workman must have come 5 times during the whole period and he denied that the X-ray report as well as the X-ray plate is not related to the injuries sustained by the workman. He said that chronic Costo Chondritis initially detected when the claimant visited his chamber for the first time. Relying on the aforesaid evidence, the W.C. Commissioner by judgment and award dated 11.08.2003 held that there was employer employee relationship between the workman and the owner and that he had received physical injury in road traffic accident in course of his employment resulting in 35% loss of earning capacity. According to the W.C. Commissioner, the claimant was 24 years of age at the time of accident and he was drawing monthly wage of Rs. 3,500/-, that quantum of compensation was done in accordance with the provision of section 4(1)(c)(ii) of the Act and thereupon the compensation was worked out as follows:- 35% of Rs. 2100/- x 221.37 = Rs. 162,706.95 Which was rounded off to Rs. 1,62,707/-. Having found the vehicle was duly insured with the opposite party No. 2, the W.C. Commissioner directed the insurance company to make payment of compensation within a period of 30 days along with interest at the rate of 9% per annum from the date of accident till realisation. As against this judgment, the insurance company has preferred MFA No. 18 of 2004 before this court. The appeal was admitted on 13.02.2004, however, without framing any substantial question of law at the time of admission. 9. In N.W.C. Case No. 51 of 2002, instituted at the instance of Md. Nasiruddin, yet another workman of the vehicle bearing registration No. ASJ-9574, the insurance company submitted identical written statement without denying the liability. But the stand was taken that liability, if there be any, would be to the extent of terms and conditions of the policy. However, the employer employee relationship between the workman and the owner, the factum of the accident and injury sustained by the workman were denied. In course of trial, Md. Nasiruddin, being claimant, examined himself as PW 1 and reiterated the same averments made by him in the claim petition. He stated that he was working as a labourer in the aforesaid vehicle under Shri Sushil Dutta at a monthly wage of Rs. 1,000/- in addition to a daily allowance of Rs. 100/-. In course of trial, Md. Nasiruddin, being claimant, examined himself as PW 1 and reiterated the same averments made by him in the claim petition. He stated that he was working as a labourer in the aforesaid vehicle under Shri Sushil Dutta at a monthly wage of Rs. 1,000/- in addition to a daily allowance of Rs. 100/-. On 07.02.2002 when the vehicle was moving from Bamuni to Nagaon, it met with an accident by another vehicle coming from opposite direction and consequently he sustained injury on his person making him physically disabled. He brought on record as many as 17 documents including accident information report (Ext. 1), X-ray report (Ext. 2), medical certificate (Ext. 3), prescriptions (Ext. 4 – Ext. 10), cash memos (Ext. 11 – Ext. 14), postal receipts (Ext. 15 – Ext. 16) and notice copy (Ext. 17). In course of cross examination also this witness effectively contradicted as to the necessary ingredients for giving compensation. This witness examined one Dr. Durgeswar Bora. He stated that upon examination of X-ray, he found that there was multiple ribs fracture of the workman because of the road traffic accident. On subsequent examination he discovered that because of the fracture, the patient has been developed chronic costo chondritis thereby rendering physical disability to the extent of 20% and consequently, he lost earning capacity to the extent of 40%. He proved that Ext. 3 medical certificate was issued by him. This witness was cross examined on the correctness or otherwise of the medical certificate but no question was put as to whether the provision of section 4(1)(c)(ii) of the Act was born in mind of the doctor at the time he issued the disability certificate. Considering this evidence led by the workman and in presence of the parties, the W.C. Commissioner passed judgment and award on 03.07.2003, inter alia, holding that there was employer employee relationship between the workman and the opposite party No. 1 owner and that the workman had sustained physical injuries in course of employment because of the road traffic accident and in the process, he has lost earning capacity to the extent of 40%. The W.C. Commissioner found that workman was 25 years of age at the time of accident and he was drawing monthly wage of Rs. 3,000/-. The W.C. Commissioner found that workman was 25 years of age at the time of accident and he was drawing monthly wage of Rs. 3,000/-. With these findings, he calculated compensation under section 4(1)(c)(ii) of the Act and held that the insurance company was liable to make payment of Rs. 1,56,175/- as compensation along with interest at the rate of Rs. 12% per annum from the date of accident till deposit. He directed the insurance company to make payment of the amount within a period of 30 days from the date of order. This judgment and award passed on 03.07.2003 has been called in question in the present appeal being MFA No. 99/2004 which was admitted by this court on 05.10.2005. However, no substantial question of law was framed as required under Section 30 of the Act. 10. I have heard Mr. SS Sarma, learned senior counsel assisted by Mr. B Mukherjee for the appellant in all these three appeals. I have also heard Mr. K Basar, learned counsel for the respondent No. 1 and Ms. M Devi, learned counsel for the respondent No. 2 in all the three appeals. I have perused lower court records led by the parties both oral and documentary. 11. Having perused evidence available on record and the argument put forward by the learned counsel for the appellant, it appears that the only point urged by the learned senior counsel is in regard to liability of the insurance company to make payment of compensation to all the three workmen. No argument has been put forward either in regard to existence of permanent partial disabilities of the three workmen referred to above or questioning the quantum of compensation and/or the procedure in determining the same. There is no argument that it is not a case of permanent partial disability and so no compensation is allowable to the workmen under section 4(1)(c)(ii) of the Act. Mr. SS Sarma, learned senior counsel in his usual fairness, submitted at the threshold that the only point which needs to be examined in these cases, is as to whether insurance company does have any liability, whatsoever, in view of the terms and conditions of the policy. Mr. SS Sarma, learned senior counsel in his usual fairness, submitted at the threshold that the only point which needs to be examined in these cases, is as to whether insurance company does have any liability, whatsoever, in view of the terms and conditions of the policy. He submits that so far as the cleaner is concerned, who is the respondent in MFA No. 18 of 2004, the insurance company may be bound statutorily to make payment of compensation to him but so far as the other two workmen involved in MFA No. 15 of 2004 and MFA No. 99 of 2004 are concerned, the workmen were duty bound to establish that extra premiums were paid for covering their risk. At such argument, this court perused the written statement in all the three cases to find out as to whether such an objection was taken at the threshold in course of pleadings. It appears that no such stand was taken in the written statement in any of the three N.W.C. cases and so it cannot be said that necessary foundation has been laid by the insurance company so as to raise such a question at the time of appeal. Moreover, the insurance company being the custodian of policy documents, was at liberty to produce the same at the time of trial to establish that no extra premium was paid by the owner so as to cover the risk of the employees concerned herein. Under such circumstances, when no document was placed at the trial court and no foundation was laid by making appropriate averment in the written statement, production of a photocopy of the policy document at the time of presentation of the Memo of Appeal cannot enable the appellant to make submission to this effect at this stage. Even in the appeal, the insurance company has not taken recourse to the provision of Order XLI Rule 27 of the Code of Civil Procedure for bringing the document on record in accordance with law. Mr. Even in the appeal, the insurance company has not taken recourse to the provision of Order XLI Rule 27 of the Code of Civil Procedure for bringing the document on record in accordance with law. Mr. S.S. Sarma, learned senior counsel, has placed reliance on the judgment of the Hon’ble Supreme Court in the case of Ramashray Singh v. New India Assurance Company Limited and others reported in AIR 2003 SC 2877 to argue that the owner of the vehicle did not make payment extra premium to cover the liability of the employees other than the driver and the conductor and so the insurance company does not have liability. Although, there is no quarrel on the position of law but in the absence of foundation for making this argument, the appellant is not entitled to argue at this stage that no premium was paid by the insurance company, inasmuch as, neither a pleading was made to that effect nor the policy document was produced before the trial court. As pointed out above, the appellant did not file any application under Order XLI Rule 27 of the Code of Civil Procedure for leading evidence at appellate stage. However, even if such a prayer would have been made perhaps such prayer could not have been allowed for absence of necessary pleadings. Having so found, it appears that no substantial question of law does arise in all the three appeals. Accordingly, all the three appeals are dismissed. 12. No order as to costs. 13. Interim order, if any, stands automatically vacated. 14. The jurisdictional W.C. Commissioner shall issue notice to the workmen of all the three N.W.C cases as referred to above and shall disburse the amount to them, if not already disbursed.