1. Heard Mr. S. Dutta, learned Sr. counsel for the appellant. None appears on call for the respondent.

2. By filing this appeal under Section 30 of the Workmen’s Compensation Act, 1923 (now called as Employees’ Compensation Act, 1923 and hereinafter referred to as “the Act”), the appellant has challenged the judgment and award dated 22.12.2008 passed by the learned Commissioner, Workmen’s Compensation, Nagaon in N.W.C. Case No. 147/2002.

3. This appeal was admitted by order dated 21.04.2010 on the following substantial questions of law:

(i) Whether daily allowance earned by the workman can be construed to be part of the salary in order to compute the precise amount of compensation?

(ii) Whether doctor can assess loss of earning capacity of the injured at his Whims/ Guesswork?

4. With his usual fairness, the learned Sr. counsel for the appellant has submitted that the first substantial question of law has since be settled by various judgment of this Court wherein it has been held that daily allowance earned by a workman is to be construed to be a part of the salary for the purposes of calculating the amount of compensation. In view of above, only the second question of law survives to be determined by this Court in the present appeal.

5. The facts as revealed from record is that the claimant, namely, Rama Kanta Das was a resident of village No. 3, Kandhulimari in the district of Nagaon, and he was employed as a handyman cum cleaner in a passenger carrying bus bearing Registration No. AS-02/3551. The said vehicle met with an accident at National Highway No. 37 on 29.04.2002 at about 8.00 a.m. in which the claimant/respondent No. 1 suffered grievous multiple injuries in his person, pursuant to which, the respondent No. 1 claimed that he was unable to perform his day to day duties and became permanently disabled. The jurisdictional Roha P.S. registered a case as GDE No. 700 dated 27.04.2002. The respondent No. 1 had claimed that he was 26 years of age and that he used to earn salary of Rs. 2000/- per month excluding daily allowance of Rs. 30/- per day from the respondent No. 2, who is the owner of the said vehicle. As per the statement made in the claim petition, the notice was properly served to the opposite parties therein, namely, Sri Dipak Kumar Nath (respondent No. 2 herein) as well as Oriental Insurance Co. Ltd. Nagaon Branch (appellant herein) after the accident under the provisions of Workman’s Compensation Act, but without any result and claim a compensation of Rs. 3 Lakhs with interest thereon.

6. Although, the claim petition contained in the lower court record does not reflect the date of filing of the claim petition and the verification also does not contained any date, but the order sheet reveals that the claim application was filed on 20.06.2002. As per the claim application, there are only two enclosures, the first being accident information report in original and other being an injury report. The owner of the vehicle as well as the appellant herein contested the case by filing their separate written statement. The stand of the respondent No. 2 herein was that the vehicle was driven by an authorized driver having a valid license and that the vehicle was duly insured with the appellant herein and the said insurance was valid as on the date of the accident and there is no violation that the condition of insurance and therefore, prayed to absolve him from the claim. The appellant in the written statement denied each and every statement made in the claim petition and also denying their indemnity by stating that the respondent No. 1 would have to prove the valid policy of insurance, about his employment and about validity of the driving license etc. The respondent No. 1/claimant examined two witnesses including himself and the Doctor and he exhibited the following exhibits, viz. Exbt. No. (1) information report, (2) advice slip from Ahotguri Sub Centre, Exbt. (3) is injury report, Exbt. (4)(i) and (4)(ii) x-