JUDGMENT : The judgment and award dated 23.09.2008 passed by the learned W.C. Commissioner at Guwahati in W.C. Case No. 113/2003 thereby directing the insurance company to make payment of Rs. 1,74,703/- to the workman, namely, Md. Harmuz Ali, has been called in question by the insurance company by filing the present appeal under section 30 of the Workmen’s Compensation Act, 1923 (now re-designated as Employees’ Compensation Act, 1923 and hereinafter referred to as ‘the Act’). 2. The brief facts involved in this case are required to be stated first. One Md. Harmuz Ali approached the W.C. Commissioner at Guwahati on 03.06.2003 by filing an application under section 3 of the Act stating that he was engaged as a handyman in vehicle No. AMP-1525 (Bus) belonging to one Smt. Ratna Das at a monthly wage of Rs. 4,000/-. He claimed to be 30 years of age as on the date of accident and further stated that on 04.03.2003 when the aforesaid bus was plying from Barpeta to Pathsala with passengers on board, it met with an accident at Kayakuchi at around 2.45 P.M. Kayakuchi out-post of Barpeta Police Station made a G.D. Entry being No. 61/2003 in this respect. In the accident, the claimant sustained grievous injury on his person resulting in total partial disablement. He claimed Rs. 5,00,000/- as compensation for the aforesaid disability. 3. On being notified, the opposite party No. 2 insurance company appeared and submitted written statement. In the written statement it was stated by the insurance company that the claim petition was not maintainable, that there was no cause of action, that claimant was not a workman as defined under the Act, that the owner of the vehicle (O.P. No. 1) stated before the investigation done by the opposite party No. 2 that claimant Md. Harmuz Ali was not at all an engaged handyman in the bus and that he was not a workman under section 2(a) of the Act. Other statements made in the claim petition were also flatly denied and it was prayed that the claim petition be rejected at the threshold. The W.C. Commissioner thereafter asked the parties to prove their respective evidence whereupon the claimant examined himself as PW 1 and one Dr. SC Sharmah as PW 2. They adduced police report as Ext. 6, doctor’s prescriptions as Ext. 1 and Ext. 2, medical certificate as Ext. The W.C. Commissioner thereafter asked the parties to prove their respective evidence whereupon the claimant examined himself as PW 1 and one Dr. SC Sharmah as PW 2. They adduced police report as Ext. 6, doctor’s prescriptions as Ext. 1 and Ext. 2, medical certificate as Ext. 3, X-ray report as Ext. 4 and X-ray plate as Ext. 5. The insurance company did not examine any witness and did not adduce any documentary evidence. 4. Noticing that Dr. SC Sharmah (PW 2) stated in his evidence on affidavit that the claimant was examined by him on 04.03.2003 and subsequently on 05.04.2003 and 19.05.2005 and that thereupon medical certificate Ext. 3 was issued on 29.05.2005 stating that the claimant sustained physical disability to the extent of 35% resulting in 35% loss of earning capacity, the learned W.C. Commissioner passed the award under Section 4(1)(c)(ii) of the Act and directed the insurance company to make payment of Rs. 1,74,703/- as it was found that the subject vehicle was covered by valid insurance of New India Assurance Company Limited vide policy No. 530300/31/02/14255. The learned W.C. Commissioner also directed the insurance company to make payment of interest at the rate of 12% per annum from the date of issue of the order for disbursement. This judgment and award dated 23.09.2003 passed by the W.C. Commissioner has been called in question in the present appeal at the instance of the insurance company. 5. This court while admitting the appeal under section 30 of the Act framed following 5 (five) substantial questions of law:- 1. Whether the policy of a passenger carrying vehicle require to cover the liability under section 147(1) proviso? 2. Whether the findings of the Commissioner that the claimant is a workman sustained injuries out of and during the course employment is perverse? 3. Whether the Commissioner is justified in assessing and awarding compensation under section 4(1)(c)(ii) without analyzing the assessment made by the doctor as to whether the disability is permanent or temporary in terms of and as defined under the Workmen’s Compensation Act? 4. Whether the interest can be awarded from the date of accident or from the date of adjudication/determination of compensation? 5. Any other substantial question of law that may be raised at the time of hearing. 6. Although notices were duly served on the opposite parties but no one has put appearance. 4. Whether the interest can be awarded from the date of accident or from the date of adjudication/determination of compensation? 5. Any other substantial question of law that may be raised at the time of hearing. 6. Although notices were duly served on the opposite parties but no one has put appearance. The appeal is heard ex-parte against the respondents. 7. I have heard Mr. A. Ahmed learned counsel for the appellant and perused the lower court records. 8. Mr. A. Ahmed, learned counsel for the appellant, submits at the threshold that the opposite party No. 1 owner appeared in the case and by submitting written statement denied employer employee relationship between the claimant and herself. But this aspect of the matter has not been taken into consideration by the learned W.C. Commissioner. He submits that although, in the impugned award, it is found that written statement was not available on record and was considered to have been not filed by the opposite party No. 1 in view of the fact that no A/D card or registration receipt could be produced by the opposite party No. 1, yet a copy of the written statement on behalf of the opposite party No. 1 is very much available on record. On such submission being made, the lower court records are perused. I find that a copy of written statement on behalf of opposite party No. 1 is on record but it appears to be a photocopy of the original and it contains an endorsement date as 28/08. If it is found to be placed on record after 19.08.2008 in that event, placing of such written statement on record after closure of hearing does not appear to have any consequence at all. Be that as it may, this written statement has been relied on by the learned counsel for the appellant only to argue that claimant was not a handyman under the opposite party No. 1 as claimed by him. 9. Faced with such submission from the learned counsel for the appellant, the cross examination of the two witnesses of the claimant are perused to find out as to whether any suggestion was given to the claimant as to his engagement by the vehicle owner. 9. Faced with such submission from the learned counsel for the appellant, the cross examination of the two witnesses of the claimant are perused to find out as to whether any suggestion was given to the claimant as to his engagement by the vehicle owner. The short cross examinations of the two witnesses do not reveal that insurance company wanted to lay any foundation to argue that there was no employer employee relationship between the employer and the workman. Moreover, even if the written statement on behalf of the opposite party No. 1 available on record, is considered to have been filed in due course and in due time even then, the owner not having come into the witness box and none of the opposite parties having led any evidence whatsoever in support of their own pleadings, the case sought to be set up by the opposite parties as to employer employee relationship has automatically failed. This being the position, the argument that the claimant was not a workman under the opposite party No. 1 cannot be entertained at this stage. Moreover, no substantial question of law has been framed on that point at all. 10. Coming to the first substantial question of law, Mr. A. Ahmed, learned counsel for the appellant would argue that claimant was a handyman and neither a driver nor a conductor and so he is not covered by insurance policy. Such question came up for consideration in the case of Ramashray Singh v. New India Assurance Company Limited and others reported in AIR 2003 SC 2877 wherein the Hon’ble Supreme Court held that employee other than driver and conductor can be covered by a policy if there is a contract between the vehicle owner and the insurance company to that effect. Here in this case, the insurance company could have led evidence by placing policy document on record to show that no extra premium was paid by the owner to cover the risk of any other employee. The risk of driver and conductor is statutorily covered by proviso to section 147 of the Motor Vehicles Act, 1988. So no extra premium is required to be paid for driver and conductor. However, to cover the risk of any other employee, vehicle owner is required to make payment of extra premium. In the case in hand, the owner might have made payment for extra premium. So no extra premium is required to be paid for driver and conductor. However, to cover the risk of any other employee, vehicle owner is required to make payment of extra premium. In the case in hand, the owner might have made payment for extra premium. Insurance company being the custodian of the document having failed to place the policy document on record, presumption under section 114 of the Evidence Act is required to be taken against the insurance company and once such presumption is taken, it is to be held that the handyman was covered by insurance policy which has otherwise been found to be valid as on the date of accident. The first substantial question of law, therefore, is accordingly answered. 11. The claimant while examining himself as PW 1, has adduced and exhibited police report as Ext. 6 which shows that there was an accident on the fateful day. The accident having prima facie been established by police report and X-ray report as well as medical certificate having shown that the workman had sustained injuries as claimed by him, the finding of the learned W.C. Commissioner that workman sustained injuries out of and during the course of employment cannot be said to be perverse. This is because this substantial question of law is based on the presumption of fact that there was no employer employee relationship between the claimant and the opposite party No. 1. Once it is found that there was relationship between the employer and employee and once it is found that there was an accident resulting in injuries to the person of the claimant, this substantial question of law is required to be decided in the negative and against the appellant. Accordingly, it is decided. 12. The third substantial question of law is based on assessment of the doctor under section 4(1)(c)(ii) of the Act. In Ext. 3 the doctor described the injuries to be permanent and partial and claimed that such certificate was based on X-ray report as well as the X-ray plate. The X-ray report and X-ray plate were exhibited as Ext. 4 and Ext. 5 respectively. The qualified medical practitioner was examined as PW 2 who submitted his evidence in the form of affidavit and stood by the certificate (Ext. 3) issued by him. The X-ray report and X-ray plate were exhibited as Ext. 4 and Ext. 5 respectively. The qualified medical practitioner was examined as PW 2 who submitted his evidence in the form of affidavit and stood by the certificate (Ext. 3) issued by him. Not a single question has been put to this witness in course cross examination expressing doubt about the veracity of his assessment. No question has been put to him that the injury suffered by the workman was not partial and permanent in nature. No question has been put to him as to the assessment that the workman lost earning capacity to the extent of 35%. In the absence of any cross examination to the point of correctness as to physical disability and/or loss of earning capacity, the evidence placed on record by the claimant by examining PW 1 and PW 2 and by adducing Ext. 3, Ext. 4 and Ext. 5 have gone unrebutted into the evidence. The claimant proved prima facie that he suffered injury resulting in permanent partial disability to the extent of 35% resulting in 35% loss of earning capacity. There being no rebuttal evidence at all of this witness, the learned first appellate court committed no error in arriving at the finding that the workman was entitled to compensation under section 4(1)(c)(ii) of the Act. The third substantial question of law, therefore, is decided in the affirmative in favour of the workman and against the appellant. 13. The fourth substantial question of law is in regard to granting of interest on the compensation amount. The substantial question of law has been framed on the supposition that interest has been allowed w.e.f. the date of accident and not from the date of application and/or w.e.f. the date of expiry of one month from the date of passing award. Having perused the impugned judgment and award it appears that in the body of the award the W.C. Commissioner observed that interest at the rate of 12% per annum would be available to the workman w.e.f. the date of accident. However, in the operative part no such mention has been made. Be that as it may, interest that has been granted by the W.C. Commissioner does not appear to be in the nature of penal interest under section 4-A of the Act. However, in the operative part no such mention has been made. Be that as it may, interest that has been granted by the W.C. Commissioner does not appear to be in the nature of penal interest under section 4-A of the Act. In some cases, the workmen are allowed interest on the compensation amount w.e.f. the date of filing of application or from the date of accident at the discretion of the W.C. Commissioner. One such case is Oriental Insurance Company Limited v. Md. Nasir reported in (2009) 6 SCC 280 . In that case, in paragraph 49 of the aforesaid judgment, the Hon’ble Supreme Court observed that the Workmen’s Compensation Act does not prohibit grant of interest at a reasonable rate from the date of filing of claim petition till the order is passed. Only when section 4-A(3) would be attracted, interest at a higher rate would be payable wherefor a finding of fact as envisaged therein has to be arrived at. In the case in hand, there is no such finding that interest has been granted under section 4-A of the Act and no such finding could have arrived at as on the date of passing of the award. The interest ordered by the W.C. Commissioner, therefore, is not an interest within the meaning of section 4-A of the Act and so the W.C. Commissioner had no lack of jurisdiction in granting such interest at all. In terms of the observation made in paragraph 49 of the case of Md. Nasir (supra), it cannot be said that the W.C. Commissioner committed error in granting interest to the workman claimant. In paragraph 50 of the case of Md. Nasir (supra), the Hon’ble Supreme Court held that interest would be payable at the rate of 7½% per annum from the date of filing of application till the date of award and the rate of interest thereafter shall be payable in terms of the order passed by the Commissioner under section 4-A of the Act. This being the position, the fourth substantial question of law is, accordingly, decided and the direction of the W.C. Commissioner in regard to payment of interest stands modified. This being the position, the fourth substantial question of law is, accordingly, decided and the direction of the W.C. Commissioner in regard to payment of interest stands modified. The insurance company shall be liable to make payment of interest on the compensation amount at the rate of 7½% per annum from the date of filing of application till the date of award as has been held in the case of Md. Nasir (supra). No other substantial question of law has been argued. 14. Consequently, the appeal stands partly allowed. The award stands modified to the extent as indicated above. 15. Send down the records. 16. No order as to costs.