MFA 71/2006 BEFORE HON’BLE MR JUSTICE I A ANSARI JUDGMENT & ORDER [ORAL] Heard Mr. S. K. Singh, learned counsel for the insurer-appellant, and Mr. S. C. Biswas, learned counsel, appearing on behalf of the workman-respondent No. 1. A lso heard Ms. D. P. Hazarika, learned counsel for employer-respondent No. 2. 2. This is an appeal against the award, dated 24.10.2005, passed by the lea rned Commissioner, Workmen’s Compensation, Zone-III, Tezpur, in WC Case No. 08/2 004, determining Rs. 1,57,428/- as compensation payable to the workman. This ap peal has been heard on the following two substantial questions of law: 1. Whether notice of accident sent under Section 88 of the Factories Act, 1948, informing therein about a fatal accident with other necessary details by the em ployer to the W.C. Commissioner can be ignored ? 2. Whether learned Commissioner can merely on the basis of appearance of a worke r determine his age for the purpose of choosing the relevant factor under the Ac t ignoring the admission of the claimant as to the recording of his age in the o fficial record altogether ? 3. The material facts, giving rise to this appeal, are as under: 4. The respondent No. 1 herein was a workman, employed as a factory worker, at Sessa Tea Estate, in the District of Sonitpur, Assam, under respondent No. 1 herein. In the midnight of 09.10.2003, while the respondent No. 1 was putting green leaves into the leaf-crushing machine from the top, his right leg slipped into and moved inside the inlet of rotor-vane of the machine and, as a result of this accident, his right leg got crushed. He was, immediately, taken, in serio usly injured condition, to the garden hospital for treatment and, later on, shif ted to the Civil Hospital, at Tezpur. On 10.10.2003, he was brought to the Gauh ati Medical College & Hospital (in short, ’GMCH’), Guwahati, where his right leg had to be amputated. The respondent No. 1 herein, thereafter, had to remain i n the GMCH, as an indoor patient, from 10.10.2003 to 22.11.2003. Even after his discharge from the GMCH, he was advised by the doctors to take complete bed res t for three months. 5. The workman (respondent No. 1 herein) accordingly applied for compensat ion on the ground that he had been permanently disabled as a result of the accid ent and rendered unable to earn his livelihood. The respondent No. 2, as employ er, did not file any written statement and did not challenge the correctness of the age of the workman, which was mentioned by the workman, in his claim applica tion, as 42 years. 6. At the time of adducing evidence, it was the workman, who had adduced ev idence by examining two witnesses. No evidence was adduced by the employer-resp ondent No. 2. Since the age of the workman, as mentioned in his application see king compensation, had not been disputed by the employer-respondent No. 2, there was really no dispute with regard to the correctness of the age, which had been mentioned by the workman as 42 years. The accident and the extent of injury, c aused to the workman, were also not disputed by the employer-respondent No. 2. 7. Considering the fact that the insurer-appellant had disputed, at the tim e of hearing, the correctness of the age by mentioning the workman’s age as 52 y ears 7 months, which was as per the notice, given under Section 88 of the Factor ies Act, 1948, read with Rule 95 of the Assam Factories Rules, 2005, the learned Commissioner, Workmen’s Compensation Act, while passing the award, on 24.10.200 5, pointed out that the employer had not produced the Employment Register, which contained the age of the employees; rather, the referral form, dated 09.10.2003 , which had been filled up by the employer, while sending the workman-respondent No. 1 for medical treatment, mentioned the workman’s age as 42 years at the rel evant point of time. The discharge certificate, issued by the authorities in th e GMCH, also mentioned the patient’s (workman’s) age as 42 years. The learned C ommissioner also took notice of the fact that from the physical appearance of th e workman, he looked a person below the age of 45 years and it is this observati on of the learned Commissioner, which has been seriously challenged in this appe al. 8. Considering the questions, which have been raised in the present appeal, it needs to be noted, as already indicated above, that the workman, while apply ing for compensation, clearly mentioned his age as 42 years. This assertion was not disputed by the employer. The mere fact, therefore, that the record, maint ained by the employer, mentioned the age of the workman as 52 years 7 months, co uld not have been accepted to be true by the learned Commissioner without any di spute having been raised with regard to the correctness of the age, which stood mentioned by the workman in his claim application. This apart, the referral for m of the Sessa Tea Estate as well as the discharge certificate, issued by the GM CH, both mentioned, as indicated above, the age of the workman as 42 years. Eve n if, therefore, the observations, made by the learned Commissioner, that the wo rkman looked like a person below 45 years of age, are kept excluded from the pur view of consideration by this Court, it is not possible to rely implicitly on th e record maintained by the employer, particularly, when it was not even suggeste d to the workman by the employer or by the insurer, while cross-examining the wo rkman, that the age, mentioned in the records of the employer, was the correct a ge of the workman. 9. In the circumstances mentioned above, this Court does not find that the learned Commissioner committed any error in arriving at the conclusion that the workman’s age, at the time of the accident, was 42 years. On this basis, when th e compensation is calculated, it comes out to be the amount, which has been dete rmined by the learned Commissioner, i.e., to the tune of Rs. 1,57,428/-. This amount has been directed to be paid within a period of 60 days with further dir ection to pay simple interest @9% per annum, on the said sum of compensation, wi th effect from 09.10.2003 till realization of the compensation amount. This Cou rt does not find any infirmity, legal or factual, in the findings, arrived at by the learned Commissioner, and the quantum of compensation awarded by him. 10. In the result and for the foregoing reasons, this appeal fails and the s ame shall accordingly stand dismissed with cost of Rs. 500/-. 11. Let the LCR be sent back forthwith.