MFA 63/2004 BEFORE HON’BLE MR. JUSTICE P K MUSAHARY JUDGEMENT & ORDER (oral) This appeal is directed against the judgment and award dated 2 3.2.2004 passed by the learned Commissioner, Wokmen’s Compensation, (hereinafter referred, in short as ’Commissioner’) Guwahati in WC Case No.104 of 2003. 2. By the impugned judgment and award, the learned Commissioner det ermined the compensation at Rs.1,05,324/- only in favour of the claimant/respon dent. 3. Mr. Ahmed, learned counsel for the appellant submits that while calculating the compensation, the learned Commissioner has also calculated the d aily allowance of Rs.70/- per day with the annual wage of the Workmen Commission er. According to him, it is the settled law that daily allowance should not be i ncluded with the monthly wage. He also submits that the learned Commissioner det ermined the loss of earning capacity by himself instead of doing the same with t he assistance of a qualified medical practitioner and for that reason, he submit s that the matter may be remanded for fresh determination of compensation assess ing the loss of earning capacity by a qualified medical practitioner including t he daily allowances. 4. Mr. Khataniar, learned counsel for the respondent/claimant submi ts that there is no infirmity or illegality in the award passed by the learned C ommissioner and there is no other issue to be determined by the learned Commissi oner on remand. 5. As regards the determination of compensation excluding daily all owance, this court in Oriental Insurance Co.Ltd-appellant -Vs-Gauri Dey and ors, -respondents reported in 2009 (1) GLT 308 held that daily allowance should not be a part of the wages and in case the compensation is determined treating the daily wages as part of monthly wage, the matter should be remanded for fresh com putation of compensation. In the aforesaid referred case also a remand was order ed after finding that the daily allowance was included in the monthly wage. Ther e are other similar decision of this court in United India Insurance Co.Ltd, App ellant -Vs- Manoranjan Das and anr, reported in 2008 (suppl) GLT 329; Oriental Insurance Co.Ltd, appellant-vs- Dwijen Kalita and another, reported in 2008 (sup pl) GLT 336. It is also settled position that loss of earning capacity should be determined by a qualified medical practitioner. In the present case the doctor P K Padmapati,who examined the disabled, found 40% permanent personal disability in respect workman concerned and assess the loss of earning capacity at 38%.Th e appellant could not accept this position and on application made by the appell ant before the learned Commissioner, the disablement of the workman was re-exami ned and it was found that there was disability of 15% only but the said medica l officer did not assess the loss of earning capacity. 6. In the aforesaid premises, I am of the considered view that there is nec essity of remanding this matter to the learned commissioner to assess the loss o f earning capacity of the workman after getting him examined by a medical board consisted of three medical practitioners and after making assessment of loss of earning capacity, shall determine the compensation afresh by excluding daily all owances. 7. In view of the above, the impugned judgment and award dated 23.2.2004 pa ssed by the learned Commissioner stands quashed and set aside. The matter stands remanded to the learned Commissioner with a direction to determine the compensa tion afresh as per the provisions under the Act as well as the law settled by th is court. With the aforesaid directions, this appeal stands disposed of. 8. The learned Commissioner shall issue notice to the parties concerned on receipt of the LCR and on appearance of the parties, provide opportunity of he aring and decide the issues and render fresh judgment within a period of 3 (thre e) months from the appearance of the parties. Return the LCRs.