JUDGMENT : 1. Heard Mr. Siddhant Dutta, the learned counsel for the appellant. None appears on call for the respondents No. 1 and 2 although notices were duly served on them in substituted manner. Hence, the appeal has proceeded ex-parte against the respondents. 2. This appeal under Section 30 of the Workmen’s Compensation Act, 1923 has been filed against the judgment and award dated 06.02.2009, passed by the learned Commissioner, Workmen’s Compensation, Nagaon in N.W.C. Case No. 15/2007, by which a compensation of Rs.2,13,802/- with the interest at the rate of 12% per annum was awarded in favour of the respondent No. 1. 3. This appeal was admitted for hearing by order dated 24.01.2011 on the following substantial questions of law, viz., Whether the judgment is perverse? 4. The respondent was the claimant in N.W.C. Case No. 15/2007. As per the claim petition, the case of the respondent No. 1 in brief is that the respondent No. 2, who was the owner of a truck bearing registration No. AS-01-J-4021, had employed him by as a labourer on a monthly salary of Rs.4,000/-per month and a daily allowance of Rs.20/-per day. On 22.06.2006, while the respondent No. 1 was on duty on the said truck, the said truck was proceeding from Jorhat towards Guwahati loaded with Tea boxes, suddenly a cow appeared in front of the truck and in order to save the cow, the driver turned the vehicle to right hand side, but it turned turtle on the road side Kolong bank and the truck met with an accident at about 3.45 am at Chakrigaon on NH-37. As a result of the accident, the respondent No. 1 had suffered multiple injuries on his left hand and wrist and on left ankle and foot and on different parts of his body. He was brought to B.P. Civil Hospital, Nagaon for treatment. As per the X-ray, he was found to have suffered fracture on his hand and leg and plaster was applied to that affected part. It was projected that though the respondent No. 2 had knowledge of the accident, but he did not compensate the respondent No. 1, for which the claim was filed. The respondent No. 1 claimed that he was earning a monthly salary of Rs.4,000/-per month and daily allowance of Rs.20/-and claimed that his age was 21 years at the time of the accident. The respondent No. 1 claimed that he was earning a monthly salary of Rs.4,000/-per month and daily allowance of Rs.20/-and claimed that his age was 21 years at the time of the accident. The Nagaon P.S. (Traffic Branch) had registered G.D.E. No. 409 dated 22.06.2006 in respect of the said accident. 5. The respondent No. 2 did not contest the claim case although notices were duly served on him, as such, the claim case had proceeded ex-parte against him. The appellant herein, who was the insurer of the said vehicle by filing the written statement, took the usual pleas and put the respondent No. 1 was put to strict proof of his claim. 6. In support of his claim, the respondent No. 1 had examined himself as PW-1 and he examined the Doctor as PW-2. The respondent No. 1 exhibited the following documents, viz., Accident Information Report (Ext.1), X-Ray Report (Ext.2 to Ext.5), Injury Report (Ext.6), Prescriptions (Ext.7 to Ext.20 & Ext.22), Money Receipt (Ext.21) and X Ray plates (M. Ext.1 and M.Ext.2). The appellant herein did not examine any witness and did not adduce any evidence in support of their pleadings. 7. By relying on the Accident Information Report (Ext.1), the learned Commissioner had held that the vehicle involved in the accident was duly insured with the appellant herein. On appreciating the evidence on record, it was held that the respondent No. 1 had sustained injury in the accident, arising out of and in the course of his employment. His salary was held to be Rs.4,000/-per month and his age was held to be 21 years. The compensation was assessed as follows: 60% of Rs.4,000/- X 222.71 X 40% = Rs.2,13,802.00 (rounded up). The respondent No. 1 was also held entitled to interest at the rate of 12% p.a. from the date of order till the date of realization. The appellant was directed to satisfy the award within a period of 30 days. 8. The learned counsel for the appellant had advanced his argument on the basis of the grounds taken in this appeal. 9. On a perusal of the evidence on record, it is seen that the learned Commissioner had recorded that the doctor (PW.2) had deposed that he had examined the respondent No. 1, Md. Nobi Hussain, aged 21 years, male, son of Md. Abdul Hussain of Puranigudam, who had attended his private chamber on 25.06.2006. 9. On a perusal of the evidence on record, it is seen that the learned Commissioner had recorded that the doctor (PW.2) had deposed that he had examined the respondent No. 1, Md. Nobi Hussain, aged 21 years, male, son of Md. Abdul Hussain of Puranigudam, who had attended his private chamber on 25.06.2006. He had further stated that the respondent No.1 had come with an X-Ray plate which showed “fracture at the lower metaphysical regions of both bones of left forearm with displacement of fragments” and another fracture of both bones of left leg. The P.O.P. was removed after 45 days and thereafter, the respondent No.1 was again examined on 16.01.2008 and it was found that respondent No. 1 had developed osteo-arthritis with multiple joint pain of left leg including left knee and ankle joint and on left writ joint following the injuries for which the respondent No. 1 had developed 35% disability for which he lost his earning capacity of 40% and the doctor opined that he would not be able to do his earlier job. 10. On a perusal of the LCR, the photograph attached to the claim petition is seen, the said photograph can be of any age higher than 21 years. The said photograph is certainly not of a young male of 21 years. Although this Court is not an expert in guessing the age from the photograph, but the said photograph was shown to all lawyers present in court including the officials and staff of the court present. Nobody would agree that the person shown in the photograph was 21 years old and everybody placed him to be a person who would be around the age of 50-55 or even beyond. 11. In this case the injury report was issued on 16.01.2008. However, the claim petition was filed on 01.02.2007. Hence, at the time of filing of the claim petition, there was no medical certificate, opinion or a finding by any registered medical practitioner that the respondent No. 1 was suffering from any sort of disability. In this case, the case was ready for evidence on 22.11.2007. The case was adjourned and next posted on 10.01.2008 for hearing. Thereafter, the case was fixed on 19.03.2008. As per the order dated 19.03.2008, the PW-1 was examined, cross examined and discharged. In this case, the case was ready for evidence on 22.11.2007. The case was adjourned and next posted on 10.01.2008 for hearing. Thereafter, the case was fixed on 19.03.2008. As per the order dated 19.03.2008, the PW-1 was examined, cross examined and discharged. Thus, it is at the evidence stage, on 19.03.2008, the injury report (Ext.6) was introduced for the first time in evidence. Therefore, in the opinion of this Court, the introduction of the injury report (Ext.6) in evidence is in violation of Rule 21(3) of the Workmen’s Compensation (Procedure) Rules, 1924. 12. Moreover, there is a gross infirmity in the oral evidence of PW.2 i.e. the doctor and the documentary evidence. As per the evidence of the doctor (PW.2), he had deposed that the P.O.P. was removed on 30.07.2006. There is a clear overwriting in the prescription (Ext.17), which is ex-facie visible on the said exhibit. A different date originally appears in the said prescription, but by applying whitener and by a clear overwriting, the pre-existing date appears to be overwritten by date of 30.07.2006. 13. The learned Commissioner had held that the P.O.P. was removed after 45 days. The date of the accident being 22.06.2006, 45 days would expire on 07.08.2006. Therefore, the overwriting of the date of removal of P.O.P. in Ext.17 by applying whitener creates some doubt in the authenticity of the said Ext.17. Moreover, again by applying whitener, the originally written date of 30.07.2007, appearing below the signature of the doctor was altered/ overwritten as 30.07.2006. This is nothing but manipulation and tempering of the prescription (Ext.17). In the cross-examination of PW.2, he had stated that the injury of such nature would require 1½ months to heal. Therefore, with that evidence of the doctor (PW-2) on record, the same doctor (PW-2) should not have removed the P.O.P. on 30.07.2006, and if he has done so, the doctor (PW-2) had removed the P.O.P. of the respondent No.1 at his own professional risk. Moreover, in his cross-examination, the PW.2 has stated that while giving the injury report he saw the old X-Ray. Moreover, in his cross-examination, the PW.2 has stated that while giving the injury report he saw the old X-Ray. Therefore, without disclosing how he arrived at a finding that the Osteo-arthritis is set-in in the absence of any of any fresh X-Ray, the injury report (Ext.6) does not inspire any confidence of this Court and it appears that the said injury report has been tailor made to create evidence in the case and was issued casually. The doctor (PW-2) did not record any clinical finding as to how he could diagnose osteo-arthritis, in the absence of any X-Ray showing that the articular margins of the fractured area was showing signs of deformity. 14. It is interested to see that although the accident took place on 22.06.2006 but the prescription at Ext.10 is dated 18.06.2006 and the prescription at Ext.12 is dated 10.04.2006. This is yet another example of manufacturing medical exhibits. A perusal of the prescriptions on record shows that while in Ext.7, the age of the respondent No. 1 was shown as 20 years. In Ext.8, it was 22 years. In Ext.9, it is 30 years. In Ext.10, it is 22 years. In Ext.11, it is 25 years. In Ext.12, it is 28 years. In Ext.13, it is 20 years. In Ext.14, it is 25 years. In Ext.15, it is 22 years. In Ext.16, it is 22 years. In Ext.17, it is 22 years. In Ext.18, it is 21 years. In Ext.19, it is 22 years. In Ext.20, it is 21 years. In Ext.21, it is 28 years and in Ext.22, it is 28 years. Hence, there was no way for the learned Commissioner to hold that as per the medical record, the age of the respondent No. 1 was 21 years. Moreover, Ext.21 is a money receipt, which shows that it was issued for X-Ray of lumbar spine done on 14.02.2007, but there is no record of any such injury suffered by the respondent No.1. 15. Moreover, discrepancy is found even in the order sheet, as per the order sheet, on 18.02.2008, the next date of case was fixed on 27.01.2009 for DW and argument. As per order sheet, on 27.01.2009, the argument was heard by both sides and the case was reserved for judgment. 15. Moreover, discrepancy is found even in the order sheet, as per the order sheet, on 18.02.2008, the next date of case was fixed on 27.01.2009 for DW and argument. As per order sheet, on 27.01.2009, the argument was heard by both sides and the case was reserved for judgment. However, as per the impugned order, the date of hearing is shown as 19.03.2008 and 04.06.2008 and the date of argument is shown as 18.12.2008 and the date of judgment is shown as 06.02.2009. Therefore, the manner of conduct of the trial creates a serious doubt in the mind of this Court. Hence, in view of the discussions above, this Court is of the view that the finding that the disease of osteo-arthritis had developed on the respondent No.1 is not sustainable on the basis of documents on record and in the absence of record of clinical finding how the doctor could diagnose osteo-arthritis in the absence of any fresh X-Ray, as such, the diagnosis is deemed to have been made by the doctor (PW-2) on the basis of guesswork alone. 16. The injury report (Ext.6) given by the doctor (PW.2) does not inspire the confidence of this Court and therefore, the same is rejected because the said certificate was issued after the trial had begun and manufactured just before the respondent No.1 had examined himself as PW-1. Moreover, Rule 21 of the 1924 Procedure Rules was violated. Therefore, this court is of the opinion that the said injury report (Ext.6) was not the basis for filing of the claim petition and it is a tailor made document. It is held that on 01.02.2007, when the claim petition was filed, there was no report by any registered medical practitioner that the respondent No.1 was suffering from any permanent partial disability. 17. Hence, in view of the discussions above, the impugned judgment and award dated 06.02.2009 passed by the learned Commissioner, Workmen’s Compensation, Nagaon in W.C. Case No. 15/2007 is found to be not sustainable, as such, the sole substantial question of law is answered in the affirmative and in favour of the appellant and, as such, the said impugned judgment is hereby set aside. Consequently, this appeal stands allowed. 18. There shall be no order as to cost. 19. Consequently, this appeal stands allowed. 18. There shall be no order as to cost. 19. The appellant is entitled to refund of any part of the compensation deposited and/or paid by the appellant and/or any such amount released to the respondent No.1 on account of compensation or interest awarded in favour of the respondent No.1. 20. Return back the LCR.