JUDGMENT :

1. Heard Mr. S. Dutta, learned senior counsel appearing for the appellant. I have also heard Mr. A.K. Purkayastha, learned counsel appearing for the respondent no.1. None appears for respondent no. 2.

2. This appeal filed under Section 30 of the Workmans Compensation Act, 1923 is directed against the judgment and award dated 03/07/2007 passed by the learned Commissioner, Workmans Compensation, Nagaon, Assam in case No. NWC 156/2005, awarding a sum of Rs. 1,15,328/- along with interest @ 9% per annum on the said amount from the date of accident till realization.

3. The appeal was admitted to be heard on the following substantial questions of law :-

"1. Whether the learned Commissioner can, on the presumption of the registered medical practitioner, accept the disability at 30%?

2. Whether daily allowances, paid to the workman, can form part of his wages in assessing the compensation?

3. Any other question or questions, which may be allowed to be raised by the appellant at the time of hearing of this appeal?"

4. The facts of the case, in a nutshell, are that the claimant/respondent no.1 in this case was engaged as a labour in Vehicle No. AS-02/B-0825 (Truck) owned by the respondent no.2. On 05/09/2005, when the vehicle was proceeding from Jamunamukh towards Nagaon on the national highway, owing to some mechanical defect, the truck had turned upside down on the road, as a result of which, the claimant claims to have suffered grievous injuries on the head and both the knees besides other parts of the body. The claimant was thereafter, shifted to BPC hospital at Nagaon for treatment and a case being Nagaon PS Case No. 657/2005 was registered under Section 279/304(A) of the IPC.

5. Claiming that the injuries suffered by him had resulted into permanent partial disablement, the respondent no.1/claimant had demanded compensation from his employer i.e. the respondent no.2. However, when the said request was not accepted by the employer, the respondent no. 1/claimant had approached the learned Workmans Compensation Commissioner, Nagaon, Assam, by filing the aforesaid claim petition.

6. During the course of trial, the claimant had examined himself as PW-1 and Dr. Lalit Chanda Nath, the doctor who had treated him, as PW-2.

7. Upon appreciation of the materials available on record, the learned Commissioner was of the view that the claimant had succeeded in establishing his case justifying grant of compensation. Accordingly, by taking the salary of the claimant to be Rs. 3,000/- per month and the loss of earning capacity to be 30%, the learned Commissioner had awarded the sum of Rs. 1,15,328/- as compensation along with 9% interest from the date of the accident, treating the extent of permanent disablement to be 20%.

8. It appears from the record that the principal amount of Rs. 1,15,328/- has already been deposited by the Insurance Company and the said amount has also been disbursed by the learned Commissioner in favour of the claimant on 14/09/2009.

9. Assailing the impugned judgment and award dated 03/07/2007, Mr. Dutta submits that there is no evidence available on record to indicate any permanent disability suffered by the claimant. That apart, submits Mr. Dutta, the testimony of the PW-2 to the effect that the claimant had suffered 30% loss of earning capacity is also without any valid basis. Under the circumstances, the learned senior counsel appearing for the appellant submits that not to speak of awarding interest from the date of accident, the claimant was not entitled to any compensation at all in this case.

10. By placing reliance on the decision of this Court in the case of National Insurance Company Ltd. Vs. Bimal Nath and others reported in 2009(1) GLT 370, Mr. Dutta submits that even assuming that the claimant had suffered any injury resulting into his permanent disability, even than, in the absence of any evidence brought on record to show that the claimant was incapacitated from taking up every other employment, which he was c