JUDGMENT AND ORDER : Heard Mr. R.K. Bhatra, learned counsel for the appellant and also heard Mr. J. Abedin, learned counsel for the respondent No. 1. 1. By filing this appeal under Section 30 of the Workmen’s Compensation Act, 1923, (now renamed as Employees Compensation Act, 1923 and herein after referred to as the ‘EC Act’, for short), the appellant has challenged the judgment and order dated 7.11.2009 passed by the learned Commissioner, Workmen’s Compensation, Dhubri, in WC Case No. 34/2008. By an order dated 2.8.2010, this appeal was admitted to be heard on the following substantial questions of law: i. Whether the learned Commissioner, W.C. Dhubri was justified to assess 30% loss of earning capacity of the claimant-driver in absence of opinion of Doctor relating to disability? ii. Whether the learned Commissioner, W.C. Dhubri was justified to award of interest @ 6% per annum from the date of filing of the case, (i.e., 19.8.2008) to the depositing of money in the court, since the same is contrary to the decision of the Apex Court reported in 2007 (2) SCC 349 (National Insurance Vs. Mubasir Ahmed & Ors.)? 2. The case of the respondent No. 1 in brief is that he was employed as a driver of a truck of the respondent No. 2, bearing Reg. No. AS-18/1644. On 26.2.2008, while the respondent No. 1 was driving the vehicle from Gauripur to Guawahati with bricks loaded therein, the said truck met with an accident at the NH-37 at Nagapara Jungle under Boko PS by colliding with another truck bearing Reg. No. ML-07/2751 coming from the opposite direction. As a result of the accident, the respondent No. 1 claims that he had suffered grievous injury in his abdomen, right leg ankle, left leg knee and also suffered fracture on the pelvic bone. The respondent No. 1 was given initial treatment at Boko PHC and thereafter the respondent No. 1 took treatment at Dhubri. In respect of the said accident, the Boko PS registered a GR Case No. 49/2008 under Section 279/338/427 of the IPC on the basis of an ejahar lodged by the respondent No. 2. The respondent No. 1 served a legal notice under Section 10 of the EC Act to the respondent No. 2 as the said vehicle was having the coverage of valid insurance policy as on the date of said accident. The respondent No. 1 served a legal notice under Section 10 of the EC Act to the respondent No. 2 as the said vehicle was having the coverage of valid insurance policy as on the date of said accident. As compensation was not paid, the respondent No. 1 approached the Court of the Commissioner, Workmen’s Compensation, Dhubri, seeking compensation. The said case was registered as WC Case No. 34/2008. In course of trial, the respondent No. 1 examined 3 witnesses including the doctor as PW3. 3. The learned Commissioner, Workmen’s Compensation, by passing the judgment and award dated 7.11.2009, allowing a compensation of Rs. 1,51,142/- in favour of the respondent No. 1 together with interest @ 6% from the date of filing of the claim petition i.e. from 19.8.2008 till the date of depositing money in court. 4. The learned counsel for the appellant has submitted that as per the evidence of the respondent No. 1/claimant, there was a specific statement that in the accident, the respondent No. 1 had suffered fracture in the ankle of the right leg and he sustained injuries on the left leg knee and the steering wheel of the vehicle and iron pierced his abdomen, for which he sustained cut injuries on his abdomen. It is further submitted that during his cross-examination, the respondent No. 1 had not made any statement that there was a reduction in his earning capacity in respect of work which he was carrying out at the time of the accident, or that his earning capacity was reduced for carrying out any other employment which he could have undertaken for sustaining his livelihood. In his cross-examination, the respondent No. 1 had also admitted that he did not mention anything regarding his permanent disability in the notice sent under Section 10 of the EC Act to the insurance company or to the owner of the vehicle. As per the evidence of PW1, he was admitted in Dhubri Civil Hospital on 27.2.2008 and he had taken treatment for 22 days. 5. The respondent No. 1 examined the doctor as PW3. As per the evidence of PW1, he was admitted in Dhubri Civil Hospital on 27.2.2008 and he had taken treatment for 22 days. 5. The respondent No. 1 examined the doctor as PW3. He had deposed that on 27.2.2008 he was posted in Civil Hospital, Dhubri and on that day he examined the respondent No. 1 and found blunt abdominal injuries for which he was treated as an indoor patient from 27.2.2008 to 4.3.2008 and from 12.3.2008 to 17.3.2008 and on radiological examination, the respondent No. 1 was found to have suffered fracture of Pelvic bone. He opined that the injury was grievous and besides it, two simple injuries were sustained by the respondent No. 1. As per his opinion, the injuries was cause by blunt object and stated that “the fracture can injure the urethral function and tibia, but the residual complication may be there. The fracture healing may require 2/3 months bed rest. This fracture may lead to disability.” The said medical certificate was exhibited as Ext.8. 6. The record reveals that the PW 1/respondent No. 1 had exhibited a medical certificate dated 20.4.2008 as Ext.5. In the said medical report, the Medical & Health Officer-I of Civil Hospital, Dhubri has referred to one X-Ray plate of the abdomen. Against the same, there is a note that there was a fracture on right pubis. As per his opinion, the injury, which he termed as “blunt abdominal injury” was grievous and the other injuries were simple in nature. 7. The records further reveal that in the trial before the learned Commissioner, on 5.3.2009, the doctor was present for his examination in court as PW3, but he could not be examined due to non availability of the original certificate issued by the concerned doctor. Therefore, the respondent No. 1/claimant submitted a petition, praying for summoning the authority where the original certificate is available and also for the purpose of further summoned the concerned doctor, which was allowed and trial was re-fixed for medical evidence on 22.5.2009. By a forwarding letter dated 21.5.2009, the office of the Superintendent, Civil Hospital, Dhubri forwarded the original injury report to the court. The said injury report was proved as Ext.8. On perusal of the Ext.8, it appears that the said certificate was issued on 19.8.2009. Therefore, the said Ext.8 dated 19.8.2009 was prepared much after the injury report dated 20.4.2008 (Ext.5). The said injury report was proved as Ext.8. On perusal of the Ext.8, it appears that the said certificate was issued on 19.8.2009. Therefore, the said Ext.8 dated 19.8.2009 was prepared much after the injury report dated 20.4.2008 (Ext.5). The learned counsel for the appellant further submits that the original x-ray plate and the x-ray examination report were not exhibited to prove the nature of injury suffered by the respondent No. 1. 8. Per-contra, Mr. J Abedin, learned counsel for the respondent No. 1 supported the impugned judgment and submits that immediately after the accident the respondent No. 1 took treatment for 22 days in Dhuburi Hospital after the accident and he had suffered grievous injury at the ankle of his left leg and left leg knee and he suffered injuries in his pelvic bone resulting in fracture. The learned counsel for the respondent No. 1, by relying on the evidence of the doctor (PW3) stated that on radiological examination, the fracture of pelvic bone of respondent No. 1 was found. He further submits that the respondent No. 1 belongs to the unprivileged and an uneducated class of the society. Therefore, when he received the medical report from a qualified doctor, he accepted the same as a layman and he is not expected to know about the deficiencies contained in the medical certificate issued by the competent doctor. It was argued that in his opinion, the PW3 had categorically stated that the fracture may lead to disability. The learned counsel for the respondent No. 1 heavily relied on the fact that not only the doctor (PW3) was satisfied that the injuries suffered by the respondent No. 1 would lead to permanent disability, but nevertheless, the learned Court of Commissioner, Workmen’s Compensation independently did the exercise of computing the disability and loss of earning capacity of the respondent No. 1 after examining the respondent No. 1 as the nature of injury and other environmental circumstances and only thereafter the percentage of loss of earning capacity was assessed at 30%. He further submitted that the learned Commissioner Workmen’s Compensation had relied on the case of New India Assurance Ltd. Vs. He further submitted that the learned Commissioner Workmen’s Compensation had relied on the case of New India Assurance Ltd. Vs. Smt. I Ponnammal and Others, 2003 (2) 2.A.C. 686 (Madras), where it has been held as follows:- “Determination of most important and paramount thing for the commissioner is to consider nature of work, nature of injury and other environmental circumstances for assessing compensation-determination of loss of earning capacity of a man/woman being a question of fact and is not necessarily co-extensive with loss of physical capacity - loss of earning capacity neither a matter of medical opinion nor a matter to which medical witness can possibly speak – Assessment of loss of earning capacity being a question of fact depends upon factual material placed before the Authority.” He submitted that the learned Commissioner had correctly held that the respondent No. 1 had suffered “permanent partial disablement”, and that the said finding was based correct appreciation of the evidence on record. 9. This court has perused the record received from the learned Tribunal. It is surprising to see that in the evidence of PW1, it has been recorded that 3 copies of X-ray plates and 2 copies of ultrasound-plate was filed. However, the 3 X-ray plates, referred in the examination in chief of PW1 is not found on record. Although, 2 ultrasound plates of the print out is available, but the same has not been marked as exhibit. The X-ray plates are also not marked as exhibits. At this stage, the learned counsel for the respondent No. 1 has submitted that in the government hospitals, X-ray reports etc. are not given and only the discharge memos are issued. However, from the order sheet of WC Case No. 34/2008, it appears that on 5.3.2009, the evidence of the concerned doctor could not be held because of non-availability of the original certificate and thereafter the respondent No. 1 had submitted a petition praying for summoning the authority where the original certificate is available along with petition for summoning on the concerned doctor. Therefore, as the respondent No.1 had taken steps to call for the original medical certificate from the concerned authority, that there was no impediment for him to get the x-ray report for the purpose of exhibiting the same in the trial. Therefore, as the respondent No.1 had taken steps to call for the original medical certificate from the concerned authority, that there was no impediment for him to get the x-ray report for the purpose of exhibiting the same in the trial. Assuming that the statement in evidence in-chief of the PW1 was correctly recorded that 3 x-ray plates are submitted, then there was no cogent reason for not accepting the same to prove the nature of the injury suffered by the petitioner including fracture in the pelvic bone. 10. There, it appears to be a further fallacy in accepting the medical certificates marked as Ext.5 and Ext.8 as a proof of injury. The Ext.5 certificate is dated 10.4.2008. By order dated 5.3.2009, the original copy of the said certificate was called and what was exhibited as the Ext.8 to be the original certificate is dated 19.5.2009. Moreover, on examining with Ext.5 and Ext.8, this court does not find the Ext.8 certificate to be the original of Ext.5 certificate. The same are also not consonance with the evidence of PW3 because as per the evidence in-chief of PW3, he examined the respondent No. 1 on 27.2.2008. Therefore, what was exhibited and proved as Ext.5 and Ext.8, are not the original report of medical examination of respondent No. 1 done on 27.2.2008. It is not the evidence of the doctor (PW1) or the respondent No. 1 that the certificate dated 20.4.2008 (Ext.5) or medical certificate dated 19.5.2009 (Ext.8) was issued on physical examination of the respondent No. 1 on the dates mentioned therein. Therefore, when the PW3, i.e. the doctor has stated in his cross-examination that the disability of a person cannot be confirmed unless he is re-examined by him establishes that the certificates dated 20.4.2008 (Ext.5) and 19.5.2009 (Ext.8) were issued without examining the respondent No. 1 afresh. Those 2 certificates are not issued on the basis of examination of respondent No. 1 which was done on 27.2.2008 at 2:25 am. The correctness of entries recorded in the i.e. medical certificates, Ext.5 and Ext.8 are further doubted because the said doctor himself had appeared before the commissioner on 5.3.2009 and took the plea of non-availability of the original certificate and thereby the learned Commissioner fixed the case on 22.5.2009. The correctness of entries recorded in the i.e. medical certificates, Ext.5 and Ext.8 are further doubted because the said doctor himself had appeared before the commissioner on 5.3.2009 and took the plea of non-availability of the original certificate and thereby the learned Commissioner fixed the case on 22.5.2009. Thus, it is apparent that the medical report (Ext.8) did not exist on 5.3.3009 and that the Ext.8 dated 19.5.2009 was a manufactured document. The Ext.8 by no stretch of imagination is the original of any known medical report. 11. As Ext.5 and Ext.8, i.e., the medical reports are found to be manufactured documents, the non proving of the X-ray plate or the medical report of X-ray examination leads to a presumption under Section 114 Explanation-g of the Evidence Act, that had the said documents been produced, those would have gone against the respondent No. 1. More surprisingly, there is no advice in Ext.5 or Ext.8 by the doctor to the respondent No. 1 to be in complete bed rest for any particular period of time. If the evidence of PW1 is to be believed, he had not gone to Boko PS in connection with the release of the seized vehicle. Therefore, the respondent No. 1, has allegedly suffered fracture in the pelvic bone and he can travel from Dhubri to Boko PS in the district of Kamrup, for which it cannot be believed that he sustained any permanent disability. The respondent No. 1 in his evidence, alleged that the steering wheel of the vehicle and iron had pierced his abdomen due to which he sustained cut injuries but as per the evidence of the doctor (PW3), the other injuries were minor. Further, as per the opinion of PW3, as stated in his evidence in-chief, he merely said that the fracture “may lead to disability”, which is indicative of the fact that on the date when this opinion was given, the fracture had not resulted in any disability. Moreover, in respect of Ext.8, there is a candid admission of the doctor (PW3) in his cross-examination that it did not disclose disability of respondent No. 1 and that the disability of the person cannot be confirmed unless he is re-examined again, leads to an inevitable conclusion that the respondent No. 1 could not prove either his injury or his disability. 12. 12. There is no evidence that his earning capacity had reduced in respect of any employment which he could have undertaken. From the notice under Section 10 of Workmen’s Compensation Act (Ext.6), which was issued by the learned counsel for the respondent No. 1 on 27.5.2008, there is no mention about the alleged fracture of his pelvic bone. As per the said notice, the respondent No. 1 sustained multiple grievous injury resulting to which damaged the left knee joint, pubiz (sic.), ankle and that the respondent No. 1 took admission in the Dhubri Civil Hospital on 27.2.2008 and after his release, he again got admitted on 17.3.2008 and his treatment was continuously going on. The said statement made in Ext.6 the dislodges oral evidence of respondent No. 1 who had stated that he took treatment for 22 days. This also contradicts Ext.5, as per which the hospitalization of respondent No. 1 was from 27.2.2008 to 4.3.2008 and from 12.3.2008 to 17.3.2008. 13. As the PW3 i.e. Doctor admitted in his cross-examination that Ext.8 (i.e. the Medical Certificate) does not disclose disability and in view of admission that “this fracture may lead to disability” of the respondent No. 1, therefore, on the date of filing of the claim petition, there was no material before the learned Commissioner, Workmen’s compensation that the respondent No. 1 was actually suffering from disability of any sort. The provisions of EC Act does not empower the Commissioner to himself physically examine the injured and compute disability or loss of income in the absence of admissible medical evidence on record. If any authority is required on this, one may refer to the case of New India Assurance Co. Ltd. V. Sanjit Kumar & anr., 2000 (2) GLT 567. 14. In Ext.5, Ext.8 and in the evidence of PW3 i.e. Doctor, it is not mentioned that the said evidence was given after knowing the profession of the respondent No. 1. Thus, under the circumstances as narrated above, this Court is of the view that as the doctor (PW3) merely presumed the disability and assessed the loss of income only on presumption without knowing the profession of the respondent No. 1 examined by him. 15. Thus, under the circumstances as narrated above, this Court is of the view that as the doctor (PW3) merely presumed the disability and assessed the loss of income only on presumption without knowing the profession of the respondent No. 1 examined by him. 15. This court is aware that Employees’ Compensation Act, 1923 is a beneficial legislation, for which the learned Commissioner, Workmen’s Compensation are required to rely on the Doctor’s certificate of assessment of physical disability and loss of earning capacity, but such certificates must be found to be in consonance with other evidence on record. In the present case in hand, when the exhibits proved in evidence of the respondent No. 1 and the doctor (PW3) are not found to be believable, there is no way the assessment of physical disability or loss of earning capacity done by the said PW3 can be accepted as a gospel truth. Both Ext.5 as well as Ext.8 were prepared after claim petition was filed, which is enough to raise suspicion on such a certificate of being tailor made. 16. Therefore, this is found to be a fit and proper case to interfere with the impugned judgment and award. As a result, both the substantial questions of law as formulated by this court by order dated 2.8.2010 are answered in the negative and in favour of the appellant. Consequently, the impugned judgment and award dated 7.11.2009 passed by the learned Commissioner, Workmen’s Compensation, Dhubri in W.C. Case No. 34/2008 is hereby set aside. 17. This appeal is allowed with the parties left to bear their own cost. 18. If any part of the awarded sum has been deposited by the appellant before this court or before the Court of learned Commissioner, Workmen’s/ Employees’ Compensation, Dbubri, or otherwise paid by the appellant to the respondent No. 1, the appellant shall be entitled to refund and/or realization thereof.