The Oriental Insurance Co. Ltd through its Regional Manager has preferred this appeal challenging the judgment and award dated 28.2.2006 passed by the learned WC Commissioner at Guwahati in WC Case No. 53 of 2004 thereby directing the insurance company to make payment of Rs. 1,02,186/- as compensation to the claimant under section 4(i) © (ii) of the Workmen Compensation Act, 1923 (now renamed as ‘Employees Compensation Act, 1923’ and hereinafter referred to as ‘ the Act’).

2. The basic fact involved in this appeal is that one Sahadat Khan filed a claim petition before the WC Commissioner stating that he was employed by one Mazid Ali of Barpeta as handyman of a Tata Mobile vehicle No. AS-15/7806. On 5.1.2004, when the vehicle was moving, it met with an accident at NH-30 at Chakchaka under Sorbhog PS. The vehicle turned turtle on the left side of the road and consequently the handyman sustained fracture injury on his head and on his right humerus in addition to a contusion on right joint and bruise on other parts of the body. He was initially treated at SHC Sorbhog and thereafter to Barpeta Civil Hospital . According to him, because of the injuries, he could not pursue his occupation and was in a position to live on hand to mouth. He claimed that he was receiving salary of Rs.2500/- per month including daily allowance and that he was 36 years of age. On being notified, the owner opposite party No.1 appeared and submitted written statement admitting basic facts like employment, accident and quantum of salary. But opposite party No.1 did not thereafter contest and so the proceeding was held exparte against him . Opposite party No.2, insurance company by filing written statement denied all the averments on facts and stated that it does not have any liability or responsibility to make payment of compensation. On the basis of these rival contentions, the WC Commissioner asked the parties to adduce their evidence.

3. Claimant examined himself as PW-1 and Dr. SC Sharma as PW-2. The insurance company did not examine any witness but cross examined the witnesses of the claimant thoroughly. After considering the evidence available on records, the WC Commissioner arrived at the findings that claimant had sustained 35 % permanent and partial disability resulting in 35% loss of earning capacity and thereupon made assessment of compensation under Section 4(i) © (ii) of the Act. The WC Commissioner directed the insurance company to make payment of Rs., 1,02,186/- within 30 days along with interest @ 9% per annum from the date of accident till realization. This judgment and award dated 28.2.2006 has been brought under challenge in the present appeal.

4. When the matter has been called up for hearing today, no one has appeared on behalf of the respondents although name of the learned counsel for the respondent No. 1 has been clearly shown in the Cause List. Accordingly, the appeal is taken up exparte against the respondents. I have heard Mr. SK Goswami, learned counsel for the appellant.

5. This court while admitting the appeal on 21.11.2008 framed the following three substantial questions of law :

(i) Whether the Commissioner, Workmen’s Compensation can assess compensation under Section 4(1) © of the Workmen’s Compensation Act, 1923 when disability of the claimant/workman is admittedly temporary in nature?

(ii) Whether the Commissioner, Workmen’s Compensation can assess wage without deducting any amount towards allowances when admittedly claimant/workman was receiving Rs.2,500/- as monthly wages including all ?

(iii) Whether the Commissioner, Workmen’s Compensation can award interest on the award from the date of the accident ?

6. The first substantial question of law framed by this court is based on the presumption that whether the disability suffered by the workman is temporary in nature. To understand as to whether such presumption of fact does exist, I have heard Mr. SK Goswami and perused the LCR.

7. PW-1, claimant specifically state