JUDGMENT AND ORDER : Heard Mr. S.S. Sarma, learned Senior counsel assisted by Ms. M. Mazumdar, learned counsel appearing for the appellant. None appears on call for the respondent although notice was served on them respondent through substituted service by publishing the same in the local newspaper. 2. This appeal under Section 30 of the Workmen’s Compensation Act, 1923 has been filed against the judgment and award dated 26.08.2002 passed by the learned Commissioner, Workmen’s Compensation, Sonitpur at Tezpur in W.C. Case No. 48/2000. The appeal has been admitted for hearing on the following substantial question of law by order dated 29.06.2007. (i) Whether the insurer is liable to pay any compensation to the cleaner when the policy covered is limited to driver and conductor in a passenger carrying vehicle? Whether in view of above, the order is justified to assess 30% of earning capacity for non-scheduled injury? (ii) Whether award of interest and panel interest from the date of accident and default is permissible in view of Apex Court decision? 3. As per the claim case, the respondent No. 1 herein was engaged as a cleaner of a passenger bus bearing registration No. AR-01/7262, which was owned by the respondent No. 2. The said vehicle was met with an accident on 07.09.1999 at about 3:00 PM at Jaungle Balahu Gorh under Roha P.S. The accident had allegedly happened due to sudden mechanical, defect for which the said vehicle turned turtle on road side ditch. The respondent No. 1 suffered grievous injury. He was given initial treatment at Nagaon Civil Hospital and thereafter, he took treatment at Tezpur Civil Hospital. He suffered multiple injuries on his hip joints, cut injury, fracture on his right leg. The case was registered at Roha P.S. under G.D.E. No. 127 dated 07.09.1999. It was projected that the respondent No. 1 was getting a salary of Rs.2100/- including daily allowance and that the vehicle was duly insured with the appellant herein. The appellant as well as the respondent No. 2 herein had contested the claim by filing the written statement. Both of them had taken a plea of denial. 4. On the basis of the pleadings on record, the learned Commissioner had framed the following issues for trial: (i) Whether the Court has jurisdiction to entertain the claim? (ii) Is there any cause of action for the claim petition? Both of them had taken a plea of denial. 4. On the basis of the pleadings on record, the learned Commissioner had framed the following issues for trial: (i) Whether the Court has jurisdiction to entertain the claim? (ii) Is there any cause of action for the claim petition? (iii) Whether the claim petitioner is maintainable in its present form? (iv) Whether the O.P. are liable to pay compensation as claimed by the claimant petitioner? (v) If yes, what relief is the claimant petitioner entitled to? 5. In support of his claim, the respondent No. 1 examined himself as CW.1 and the Doctor as CW.2. He had exhibited the following documents, Accident information report (Exbt.1), X-Ray report (Exbt.2), Medical Certificate (Exbt.3), Prescriptions (Exbt. 4 to 13), Copy of the G.D.E. (Exbt.14), Seizure list (Exbt.15), Cash memo (Exbt.16 to 25), Notice under Section 10 (Exbt.26) and X-Ray plate (M-Exbt.1). 6. In respect of issue No.1, it was held that the learned Commissioner had the jurisdiction to entertain the claim. In respect of issue No. 2, it was held that there was a cause of action for filing the claim petition. In respect of issue No. 3, it was held that he claim petition was maintainable. In respect of issue No. 4 and 5, it was held that this was a case of personal injury of the claimant and that the respondent No.1, being the cleaner of the vehicle, was entitled to compensation. By relying on evidence of the CW. No. 1 (respondent No.1) and the evidence of claimant No. 2 (Doctor), it was held that this was a case of personal injuries cause to the cleaner of the vehicle and that the respondent No. 1 was entitled for compensation on the basis of the medical certificate issued by the CW.2, who was a qualified Doctor, and had assessed the disability at 30% after examining the petitioner. Accepting the income of the respondent No. 1 at 2,000/- per month, as per Explanation II of Section 4(i) of the Workmen’s Compensation Act, the respondent No. 1 was held entitled to the compensation as follows: 30% X Rs.1200/- X Rs.221.37/- = Rs.79,693.20/- 7. The respondent No. 1 was held to be entitled to the interest @ 12% per annum. The interest was computed at Rs.28,381/- and the total compensation was calculated at Rs.1,08,074.20. 8. The respondent No. 1 was held to be entitled to the interest @ 12% per annum. The interest was computed at Rs.28,381/- and the total compensation was calculated at Rs.1,08,074.20. 8. By assailing the impugned judgment and award, the learned counsel for the appellant has submitted that the vehicle involved in the accident was insured under the Act liability policy and therefore, in the absence of paying extra premium for the cleaner, as the insured vehicle was a passenger carrying vehicle, the only person, would have statutory coverage of insurance is the driver and the conductor, which is covered by the provisions of Section 147 (1) proviso (i) of the Motor Vehicles Act, 1988. It is further submitted that in the present case in hand, the injured was the cleaner of the vehicle. It is submitted that notwithstanding that the respondent No. 1 was covered by the definition of Workmen as defined under Section 2 (n)(i)(c) of the Workmen’s Compensation Act, 1923 as stood before its omission w.e.f. 18.01.2010, but under the Act liability policy taken under Section 147 of the M.V. Act, as the insurance coverage was taken under the M.V. Act, only the driver and cleaner would be covered unless the insurer i.e. respondent No. 2 paid extra premium for covering the liability arising out of any other person employed in connection with the motor vehicle in question against the risk of Workmen’s Compensation. 9. In support of his argument, the learned Senior counsel for the appellant has referred to the case of Ramashray Singh Vs. New India Assurance Co. Ltd. and ors., (2003) 10 SCC 664 , to project that the cleaner, though an employee was not entitled for compensation as in the said case no payment was paid for the conductor. It is submitted that in the said case, the Hon’ble Supreme Court had held that the since the employee concerned was not engaged in capacity of a driver in respect of whom alone the premium was paid apart from the passenger his claim is unsustainable. In this regard, the relevant paragraph 13 to 15 are quoted below: “13. The appellant's next submission was that the concerned employee was a 'conductor'. It is doubtful whether a 'khalasi' and a conductor are the same. In this regard, the relevant paragraph 13 to 15 are quoted below: “13. The appellant's next submission was that the concerned employee was a 'conductor'. It is doubtful whether a 'khalasi' and a conductor are the same. But assuming this were so, there is nothing to show that the appellant had paid any additional premium to cover the risk of injury to a conductor. On the contrary, the policy shows that premium was paid for 13 passengers and 1 driver. There is no payment of premium for a conductor. 14. The appellant's final submission was that as the policy was a comprehensive one, it would cover all risks including the death of the khalasi. The submission is unacceptable. An insurance policy only covers the person or classes of persons specified in the policy. A comprehensive policy merely means that the loss sustained by such person/persons will be payable upto the insured amount irrespective of the actual loss suffered. [See: New India Insurance Co. Ltd. v. J.M. Jaya 2002 (2) SCC 278 ; Colinvaux's: Law of Insurance (7th Edition) p. 93-94]. 15. Consequently, although the appellant's claim under the insurance policy arose under the Workmen's Compensation Act, since the concerned employee was not engaged in the capacity of driver in respect of whom alone premium was paid apart from the passengers, his claim is unsustainable.” 10. Having heard the learned Senior counsel for the appellant and on perusal of material on record. It is seen that as per Exbt.2 i.e. the X-Ray report dated 08.09.1999, it appears that the respondent No. 1 had suffered of fracture in the middle third of right tibia, however, the joint paces and articular margins were intact. As per the same, the X-Ray was done only in respect of the right let. However, as per the medical certificate (Exbt.3), the said certificate was issued on 03.03.2001. As per the contents of Exbt.3, the Doctor had opined that he had seen the respondent No. 1 on 08.09.1999 and his condition as it appeared then was recorded. There is no evidence on record showing that the injury complained of were not healed as on 03.03.2001 when the certificate was issued. The clinical impressions of the fracture area is not mentioned in Exbt.3. There is no mention in Exbt.3 that the fracture had not healed. There is no evidence on record showing that the injury complained of were not healed as on 03.03.2001 when the certificate was issued. The clinical impressions of the fracture area is not mentioned in Exbt.3. There is no mention in Exbt.3 that the fracture had not healed. Therefore, in the absence of any categorical finding by the Doctor in the medical certificate (Exbt.3) that the fracture had not healed, it cannot be accepted that the respondent No. 1 had suffered any disability of 30% as certified by the CW.2. 11. The LCR contents various exhibits. On perusal of exhibit, all the exhibits do not tally with the marking of exhibits as recorded in the evidence in chief of CW.1. The marking of exhibits on the document are as follows: Accident information report (Exbt.1), X-Ray report (Exbt.2), injury report (Exbt. 3), Prescriptions (Exbt.4, 5, 6, 7, 8, 10, 11, 12 and 13), Cash memo (Exbt.14 to 22) and A/D card (Exbt. 24). The record also contents an enquiry report by the Officer-in-charge of Roha P.S. This document is marked as Exbt.12. However, as per the evidence-in-chief Exbt.12 was a prescription, however, as per record, document marked as Exbt.12 is a Police Enquiry report. The contents of Exbt.12 i.e. Police Inquiry report is extracted below: “To, The Honorable Dist. & Sessions Judge, Member, M.A.C.T, Nagaon. Dated Roha the 2nd August/2000. Ref:- your kind M.N. DJN/MAC/866 dated 24.07.2000 Sub:- Enquiry Report of Roha P.S. GDE No. 127 dated 07.09.1999 Sir, I have the honor to report that on 07.09.1999 at about 3 AM while the super bus No. AR-01/7262 being driven by driver Sri Ganesh Ch. Mandal S/o. Lt. Kanailal Mandal of Alisingh P.S. Dhekiajuli Dist. Sonitpur was coming from Lamding towards Guwahati on the way of Jaungle Balahu Gorh on 37 N.H. oway knock down one truck No. AS-25/7241 which was also coming in same direction in back side. As a result of which the super bus caused damaged in front side and back side of damage of the truck. As well as some occupants of the said bus got minor and severe injuries on their person among them Sri Munindra Sutradhar S/o. Lt. Ghatu Sutradhar of pacca betabari P.s. Barpeta and Sri Sidan Sutradhar S/o. Lt. Khatru Mohan Sutradhar of Dangurkuchi P.S. Barpeta were medically examined who have appear before the police. As well as some occupants of the said bus got minor and severe injuries on their person among them Sri Munindra Sutradhar S/o. Lt. Ghatu Sutradhar of pacca betabari P.s. Barpeta and Sri Sidan Sutradhar S/o. Lt. Khatru Mohan Sutradhar of Dangurkuchi P.S. Barpeta were medically examined who have appear before the police. The bus and the truck were released in zimma along with its documents after observing of all the formalities. This refers Roha P.S. GDE No. 127 dated 07.09.1999. Yours faithfully. Officer-in-charge Roha Police Station, Nagaon (Assam) Date 02.08.2000” 12. Therefore, as per the contents of the said enquiry report by Roha P.S., the name of the respondent No. 1 does not figure as an injured in the accident. An undisputable fact is that the said enquiry report dated 02.08.2000 was sent to the Court of learned District and Sessions Judge cum Member, MACT, Nagaon. Therefore, the inevitable conclusion which can be drawn from the said enquiry report by the Roha P.S. is that bus bearing registration No. AR-01/7262 had knocked down a truck bearing registration No. AS-25-7241 and as a result, the bus was damaged in front side and back side of the truck was damaged. Therefore, the presentation of facts by the respondent No. 1 before the learned Commissioner is not found in consonance with the contents of the Enquiry report submitted by the Officer-in-charge of Roha P.S. 13. In view of above, this Court is of the view that in view of the inconsistency of the contents of the Accident Information Report (Exbt.1) and the contents of the Enquiry Report of Roha P.S. G.D.E. No. 127 dated 07.09.1999 which was submitted before the learned District and Sessions Judge cum Member, MACT, Nagaon pursuant to the memo issued by the said learned Tribunal under Memo No. DJN/MAC/866 dated 24.07.2000, where the name of the respondent No.1/claimant does not figure as an injured victim, therefore, this is a fit and proper case, wherein this Court is inclined to hold that the fact of the accident involving the respondent No. 1 is highly disputed. This calls for a re-trial as the contents of the Accident Information Report (Exbt.1) and the Enquiry Report dated 02.08.2000 by Roha P.S. (Exbt.12) prima-facie shows that some sort of fraud was played upon the learned Commissioner. This calls for a re-trial as the contents of the Accident Information Report (Exbt.1) and the Enquiry Report dated 02.08.2000 by Roha P.S. (Exbt.12) prima-facie shows that some sort of fraud was played upon the learned Commissioner. There cannot be two inconsistent report by the same police, one before the learned Motor Accident Claims Tribunal at Nagaon and the other being the Accident Information Report (Exbt.1), which was placed before the learned Commissioner, Workmen’s Compensation, Tezpur in respect of the same accident. 14. This Court is of the opinion that as fraud vitiates everything, the impugned order dated 26.08.2002, passed by the learned Commissioner, Workmen’s Compensation, Sonitpur at Tezpur in W.C. Case No. 48/2000 is liable to be set aside for a fresh decision as to whether the respondent No. 1/claimant was at all involved in the accident which had occurred on 07.09.1999 involving bus bearing registration No. AR-01/7262 and truck bearing registration No. AS-25-7241. 15. The matter is remanded back for fresh decision on merits. This is being done because the Hon’ble Supreme Court in the case of Golla Ranjanna Vs. Divisional Manager, (2017) 1 SCC 45 has, inter-alia, held that the Court of the learned Commissioner, Workmen’s Compensation is the last authority on the facts. Therefore, this Court is not inclined to give any finding of fact. 16. It would be open for the appellant to file an FIR before the competent police/investigating agency, if advised, for a proper enquiry as to whether any fraud had taken place, which can be culled out from the inconsistent contents of the Accident Information Report (Exbt.1) and the Enquiry Report dated 02.08.2000 (Exbt.12), the contents of which is quoted above. 17. In view of above, the impugned judgment and order dated 26.08.2002 passed by the learned Commissioner, Workmen’s Compensation, Sonitpur at Tezpur in W.C. Case No. 48/2000 is hereby set aside and this appeal is partially allowed by remanding the matter back to the learned Commissioner, Workmen’s Compensation, Sonitpur at Tezpur for fresh adjudication as indicated above. Needles to say that the learned Commissioner, Workmen’s Compensation, Sonitpur at Tezpur shall permit the parties to lead fresh evidence in support of their respective stand. The learned Commissioner shall not be influenced by the observations made herein. 18. Needles to say that the learned Commissioner, Workmen’s Compensation, Sonitpur at Tezpur shall permit the parties to lead fresh evidence in support of their respective stand. The learned Commissioner shall not be influenced by the observations made herein. 18. As a result of setting aside the said impugned judgment and order, the appellant shall be entitled to seek refund of the compensation paid by them to the respondent No.1. 19. There shall be no order as to costs 20. Let the LCR be returned back after page numbering as the LCR sent to this Court was not page numbered.