JUDGMENT : 1. Heard Mr. S.S. Sharma, learned counsel for the appellant. None appears for the respondents. 2. Present appeal was preferred u/s 30 of the Workmen Compensation Act, 1923 challenging the order dated 14.06.200 passed by learned Commissioner, compensation, in N.W.C. Case No. 6/2003 awarding Rs. 1,61,280 in favour of the claimant/(respondent No. 1 herein) with a direction to the appellant/Insurance Company to reimburse the same to the said claimant. 3. Briefly stated the facts, it can be re-capitulated that the claim case was preferred by the claimant/respondent Jitendra Singh before the Commissioner for Workmen Compensation, Nagaon contending that while the claimant in the capacity of handyman cum cleaner travelling on the board of the 407 Mini bus No.AMH 1434 on 18.7.2002 passengers on board from Nagaon towards the Dakhinpat the vehicle met with an accident at 4.30 pm at Sialmari PWD road at Nagaon, resulting grievous injury on his person for which he underwent treatment at Nagaon Civil Hospital. 4. After the said incident, he preferred the aforesaid claim impleading the owner and insurer of the vehicle, claiming compensation, contending that he used to earn Rs. 2,500/-monthly and Rs. 50/- as a daily allowance and as a result of which injury he sustained on his person he suffered from disability. 5. The owner and insurer of the vehicle appeared and filed their written statement before the learned Commissioner. The owner of the vehicle admitted about the status of the claimant, his employment under him and the salary and also about the injury, he sustained in the accident but subsequently the owner opted not to contest the case further. 6. The Oriental Insurance Company being the respondent No. 2 in the said case (appellant herein) raised the usual contention in the written statement without specifying any plea on their behalf. During the course of proceeding, learned Commissioner examined two witnesses, adduced by the claimant/respondent and no any witness was adduced from the side of the Insurance Company. From the nature of the pleadings, the Commissioner dispensed with the framing of issues and only material point that was taken for decision as follows: 1. whether the claimant is under the employment of OP No. 1 (the owner)in the capacity of handyman cum cleaner in the vehicle No. A.M.H. 1434 ? 2. From the nature of the pleadings, the Commissioner dispensed with the framing of issues and only material point that was taken for decision as follows: 1. whether the claimant is under the employment of OP No. 1 (the owner)in the capacity of handyman cum cleaner in the vehicle No. A.M.H. 1434 ? 2. whether the vehicle met with an accident and the claimant sustained grievous injury in the said incident, resulting permanent disability affecting his loss of earning ? 7. On the basis of the evidence so adduced by the claimant/respondent and findings of the attending doctor, learned Commissioner come to a finding that the claimant was working as a handyman in the aforesaid vehicle under the owner and he sustained injury on his person while proceeding in the said vehicle, during the course of his employment and there being no denial on the part of the owner regarding the employment of the claimant and about his monthly income etc. ,learned Commissioner held that the claimant was earning Rs. 3,000/- per month. 8. On the next, as per evidence of Dr./PW-2, the claimant sustained fracture injury of lumber-5, spine and that injury led the injured in a disabled condition whereby his movement is restricted as well as the injured having sever back-ache for fracture injury of lumber-5, he opined that due to the chronic backache which developed later, makes him 20 % disable permanently and thereby reduces his earning capacity to 40 %. 9. On the basis of such opinion of the doctor, the learned Commissioner come to a finding that the injury sustained by the claimant is partial and permanent disablement under as specified in Sec-4 (1) (c) (II) and he is permanently disabled losing his earning capacity to the extent as indicated by the medical officer. Accordingly by holding that the claimant has lost his earning capacity to the extent of 40%, the learned Commissioner awarded an amount of Rs. 1,61,280.00/- to the claimant @ 12 % interest by its order dated 14.6.2005, with a direction, to the appellant to indemnify the award. 10. Being dissatisfied with the aforesaid award, present appeal has been preferred on the ground that the learned Commissioner has erred in law in assessing the aforesaid award towards the compensation as regards the loss of earning capacity etc. 11. 10. Being dissatisfied with the aforesaid award, present appeal has been preferred on the ground that the learned Commissioner has erred in law in assessing the aforesaid award towards the compensation as regards the loss of earning capacity etc. 11. Appeal was admitted on the following substantial question of law: “(1) Whether the Insurance Company is liable to satisfy the award passed by the learned Commissioner, Workmen Compensation on the grounds that the policy of Insurance does not cover the risk of handyman/cleaner by the vehicle in question ? (2) Whether the Insurance Company is liable to pay interest under section 4 (3A) of the Workmen Compensation Act, 1923 ?” 12. The appeal is accordingly heard and perused the LCR. The primary contention that has been raised by the appellant is that that the insurance policy was not effective as against the Handymen cum cleaner of the said disputed vehicle and as such they have no liability to satisfy the award. On enquiry made by this Court, it is submitted by learned counsel for the appellant that the same matter was not specifically pleaded or proved before the Commissioner during the course of the proceeding. On perusal of record, it also reflects that the appellant/Insurance-Company has not raised the same issue in its W.S nor adduce rebutted evidence. The learned Commissioner in his award has also discussed that as the Insurance-Company failed to verify the policy particulars in this regard so they are liable to indemnify the compensation as awarded. 13. From an overall appreciation of the matters on record, the said aspect is found to be proper that the appellant has not discharged his burden as raised in its contention. However, on appreciation of the evidence of the claimant coupled with the medical evidence, it reflects that the claimant sustained only fracture injury resulting chronic backache, which is not a disability either permanent or partial. 14. Learned counsel for the appellant has vehemently contended that the learned Tribunal has erred in law by holding that the said fracture injury is a permanent disablement u/s 4 (1) (c) (II) of the Workmen Compensation Act. The opinion of the doctor itself is not maintainable that such fracture injury can result loss of earning capacity of a person up to the extent of 40 % where as such a fracture curable after a certain period of time. 15. The opinion of the doctor itself is not maintainable that such fracture injury can result loss of earning capacity of a person up to the extent of 40 % where as such a fracture curable after a certain period of time. 15. That being the position, assessment of the 40 % disability cannot legally-accepted. On perusal of the LCR, it reveals that learned Commissioner has already released 50 % of the awarded amount to the claimant in the year 2005 and learned counsel for the appellant also agreeable towards such 50% payment. In view of which this Court is not inclined to interfere into releasing 50 % of the amount to the claimant. 16. Appeal is accordingly allowed to the extent that the appellant/claimant is not required to satisfy the whole award that has been passed in this case. Appellant is hereby exonerated to satisfy the whole award. Return the LCR.