JUDGMENT :

The instant appeal has been preferred under section 30 of The Workmen’s Compensation Act, 1923 (presently Employee’s Compensation Act, 1923) against a judgment and award dated 07.09.2006 passed by the learned Commissioner, Workmen’s Compensation, Nagaon, in WC Case No 175 of 2003. By the said judgment, an amount of Rs.1,19,796/-has been awarded with interest @ 9% per annum which the present appellant was directed to pay.

2. The respondent no.1, as claimant had instituted a claim before the Commissioner for compensation for injuries sustained by him in an accident in course of his employment. The said respondent no.1 had claimed that he was a labourer of a vehicle - truck bearing registration No. AS-01C/8670 which was owned by the respondent no. 2. On 26.04.2003, the said vehicle had met with an accident at Rangagora in NH 37 wherein the claimant had alleged to have sustained multiple grievous injuries on different parts of his body. Based on the said accident G.D. Entry No. 408 was registered in Samaguri Police Station and the claimant was sent to the B.P Civil Hospital, Nagaon, where he has claimed to be an indoor patient from 26.04.2003 to 16.05.2003 and again for some days in the month of June, 2003. The claimant was advised to attend the GMCH. However, it is the case of the claimant that he was treated by one Dr. Dipesh Das privately at Nagaon. The claimant had contended that he was getting monthly salary @ Rs.4000/-and because of the accident, he had lost his physical ability to do any heavy work as a manual labourer and thereby he had lost his earning capacity. The claimant stated that he was 30 years of age at the time of the accident and the vehicle had a valid insurance cover.

3. Both the appellant insurance Company and the owner had resisted the claim by filing written statements. The claimant had examined himself as PW-1 and the private doctor as PW-2.

4. The learned Commissioner vide impugned judgment held the claimant to be entitled to for compensation and accordingly granted compensation of Rs.1,19,796/-with interest @ 9% per annum from the date of the accident. The learned Commissioner proceeded with the presumption that he had lost his earning capacity by 30% as he had physical disability of 25%.

5. This Court, vide order dated 08.02.2010 while admitting the appeal had formulated the following substantial questions of law.

“1. Whether special allowance paid to a workman by his employer can be construed to a part of the salary.

2. Whether interest can be awarded from the date of accident.”

6. Subsequently, vide order dated 01.11.2018, another substantial question of law was formulated to the following effect.

“1. Whether earning loss of the claimant to the extent of 30% consequent upon his disablement to the extent of 25% is in consonance with the materials on record?”

7. I have heard Shri S. Dutta, learned Senior Counsel for the appellant whereas the respondent no. 1 is represented by Shri A.M Ahmed, learned counsel. I have also perused the LCR.

8. Shri S. Dutta, learned Senior Counsel for the appellant has submitted that the findings of the learned Commissioner while granting the compensation is not based on any materials on record. He submits that entire findings appear to be based upon the evidence of the private doctor who had deposed as PW-2. It is submitted that the accident had occurred on 26.04.2003 and as per the claimant himself, he was treated at the B.P Civil Hospital, Nagaon. Though it appears that the document of treatment issued by the said B.P Civil Hospital was exhibited as Exhibit 16, there is no reference of the said exhibit in the impugned judgment. The judgment, on the other hand, has relied upon certain medical documents issued by the private doctor one, Dr. Dipesh Das which were given in March 2006. The question of certifying that the same had caused 25% disablement that too on 17.03.2006 is wholly unacceptable and lacks credence. However, the learned Commissioner while deciding the rel