MFA 56/2001 BEFORE THE HON’BLE MR.JUSTICE B.P.KATAKEY Upon hearing the learned counsel for the parties, following substantial question of law is formulated: 1) Whether the definition wages under Section 2(m) of Workmen’s Compensat ion Act 1923 includes daily allowances paid to the workman? This appeal will be heard on the aforesaid substantial question of law a part from the substantial question of law formulated vide order dated 17th Octob er 2001. The learned counsel for the parties have submitted that they have no ob jection if the appeal is heard today itself. Heard Mr S Dutta, learned counsel for the appellant and Mr DK Saikia, le arned counsel for the respondent. It is contended by learned counsel for the appellant that it is evident from the definition wages under Section 2(m) of the Workmen’s Compensation Act 1923(in short the Act ) that it includes any privilege or benefit which can be capable of being estimated in money other than a traveling allowance or the val ue of any traveling concession or a contribution paid by the employer of a workm en towards any pension or provident fund or a sum paid to a workman to cover any substantial expenses and paid on him by the nature of his employment and as suc h the daily allowances admittedly paid by the employer to the workman to the tun e of Rs.150/- cannot be taken as the part of wages, for the purpose of determini ng the amount of compensation payable to the workman under the provisions of the Act. Learned counsel further submits that, as the injuries in question are nons cheduled injuries, such percentage of compensation for permanent total disableme nt as is proportionate to the loss of earning capacity, permanently caused by in jury, as assessed by a qualified medical practitioner, is payable. In the instan t case, according to learned counsel, there is no assessment in respect of loss of earning capacity by a qualified medical practitioner, and the learned Commiss ioner on the basis of a certificate issued by a doctor relating to the percentag e of disability, has assessed the loss of earning capacity of the workman. Learned counsel for the appellant further submits that, by the order dat ed 17th October 2001 passed in Misc Case No.243/2001 arising out of the present appeal the claimant was allowed to withdraw 50 percent of the awarded amount as deposited by the appellant, and the balance 50 percent was kept in fixed deposit by Commissioner in a nationalized bank. Learned counsel for the respondent submits that the learned Commissioner assessed the loss of earning capacity on basis of the nature of injuries sustai ned by the workman as well as the medical certificate issued by attending doctor , wherefrom it appears that because of the injuries sustained, the workman has b ecome unfit for the job of handyman and as such, no illegality has been committe d by learned Commissioner in assessing the loss of earning capacity as 50 percen t, even in the absence of any assessment by the doctor in that regard. Learned counsel for the respondent, however, fairly submits that, in vie w of the Division Bench judgment of this Court in Oriental Insurance Company Ltd vs. Lakhimai Das, reported in (2006) 3 GLT 870, the daily allowances paid to th e workmen cannot come within the definition of wages under Section 2(m) of the Act, and urges that since by the order dated 17th October 2001, 50 percent of t he deposited amount has already been allowed to be withdrawn, the said order may not be disturbed. Under Section 4(1)(c) of the Act, in case of non-scheduled injury, a wor kman is entitled to such percentage of compensation payable in the case of perma nent total disablement as is proportionate to the loss of earning capacity (as a ssessed by a qualified medical practitioner), permanently caused by injury. In t he instant case, it is not in dispute that there was no assessment of loss of ea rning capacity by a qualified medical practitioner, though under the said provis ion of law it is to be assessed. Learned Commissioner assessed the loss of earni ng capacity as 50 percent keeping in view the nature of injuries sustained by th e workman and also the medical certificate issued by the attending doctor in res pect of the percentage of physical disablement. Strictly speaking, though the as sessment of loss of earning capacity is required to be made by a qualified medic al practitioner, since the proceeding before the Commissioner was instituted in the year 2000, I am not inclined to remand the matter to the learned Commissione r for decision afresh by allowing the workman to examine the doctor, as even if the doctor is examined, the loss of earning capacity of the workman, in view of the nature of injuries sustained would not be more than 50%. It appeared that the learned Commissioner has assessed the compensation payable under Section 4(1)(c) of the Act by taking into account the monthly wage s of the workman as Rs.2,000/-. The date of accident is 6th April 2000. Explanat ion-II to clause(b) of sub-section (1) of Section 4 of the Act, as stood on the date of the accident, reads as follows: Where the monthly wages of a workman exceed one thousand rupees, his monthly wa ges for the purposes of clause (a) and clause (b) shall be deemed to be one thou sand rupees only. The learned Commissioner has taken the monthly wages of the workman as R s.2,000/-. The words ’one thousand’ occurring in Explanation-II above was substi tuted by the words ’two thousand’ by the Act 46 of 2000, which came into effect from 8th December 2000. That being the position, it has to be read as Rs.1,000/- . In the case at hand, the monthly wages, according to the workman himself, was Rs.500/-. He was also paid Rs.150/- as daily allowance. The Division Bench of this Court, in Lakhimai case, while considering th e definition of wages u/s 2(m) of the Act has held that the daily allowances p ayable/paid to a workman does not come within the definition of wages . Followi ng that decision of this Court, the daily allowances of Rs.150/- cannot be treat ed as part of the wages paid to the workman concerned. The wages for the purpose of calculating the amount of compensation payable u/s 4(1)(c) would, therefore, be Rs.500/-. The claimant, therefore, would be entitled to 50% of 60 percent of Rs.500/- multiplied by the relevant factor i.e. 215.28, which comes to Rs.32,29 0/-. The claimant was directed to be paid 50 percent of the amount of Rs.1,29,16 8.00 by the interim order dated 17th January 2001 passed in the aforesaid Misc Case. It would not be possible for the insurance company to realize the addition al amount paid or directed to be paid to the workman, and hence the present appe al is disposed of by directing that there shall not be any recovery from the amo unt already paid to the workman. The learned Commissioner, however, shall refund the remaining amount kept in fixed deposit in the nationalized bank, pursuant t o the interim order passed by this Court, to the insurance company. The award of the learned Commissioner, WC is modified to the extent indi cated above. No costs.