MFA 105/2004 BEFORE THE HON’BLE MR. JUSTICE AMITAVA ROY Heard Mr. SS Sarma, Senior Advocate assisted by Mr. RK Bhatta, Advocate for the appellant. None appears for the respondent No.1/claimant. Having regard to the y ear of registration of the appeal and in absence of any prayer for adjournment, this Court is not inclined to postpone the hearing. The challenge in the instant appeal is against the judgment and order dated 10.0 5.2003, passed by the learned Commissioner, Workmen’s Compensation, Guwahati in WC Case No. 175/2002, awarding an amount of Rs.1,99,660/- by way of compensation for the injury sustained by the respondent No. 1/claimant in course of his empl oyment. The amount was directed to carry simple interest at the rate of 9% per a nnum w.e.f. 12.08.2002 till the deposit thereof. Shortly put the facts relevant for disposal of the instant appeal are that the r espondent No. 1/claimant, who at the relevant point of time was the conductor in a Bus bearing registration No.AS15/3576, owned by respondent No. 2, was injured in an accident involving it on 22.07.2002. The respondent No.1/claimant thereaf ter lodged a claim under the Workmen’s Compensation Act, 1923, (for short hereaf ter referred to as the Act), reciting, inter alia, the injuries sustained by him . He stated in the application that at the relevant point of time, he was earnin g Rs.1,500/- as monthly salary and was also paid an amount of Rs. 100/- as daily allowance The respondent No.2, the owner of the bus in his written statement ad mitted that the respondent No. 1 was in his employment when he met with the acci dent and also disclosed that at the relevant point of time, the vehicle was insu red with the appellant. The learned Commissioner on the basis of the pleadings and the evidence on recor d, awarded a sum of Rs. 1,99,660/- as compensation. In quantifying the amount he accepted Rs. 4000/- to be the monthly income/wage of the respondent No. 1/claim ant. He also applied the factor of 207.98 accepting that the respondent No.1/cla imant, out of the injuries, has sustained loss of earning capacity of 40%. Mr. Sarma, has urged that not only, having regard to the nature of injuries sust ained by the respondent No.1/claimant, the assessment of 40% of his loss of earn ing capacity is baseless, in absence of any medical evidence to that effect, the learned Commissioner had fallen in gross error in accepting the daily allowance to be a part of wage in calculating the amount of compensation. The plea of impermissibility of incorporating the daily allowance into the wage of an employee seeking compensation under the Act has substance as the issue is no long res integra. It has been held by this Court that in computing the amount of compensation, daily allowance of a workman, under the Act for the purpose th ereof, cannot be assimilated for calculating his wage. In that view of the matte r, on this ground alone, the impugned order is liable to be interfered with. On being queried by this Court, Mr. Sarma, on the basis of a calculation made, has submitted that if Rs. 1500/- is taken to be the monthly wage of the respondent N o. 1/claimant at the relevant point of time, then even on the application of the factor 207.98 on the assumption of loss of 40% of earning capacity, the figure works out to Rs. 74,872.80. The order dated 17.09.2007 passed by this Court in MC No. 2595/2004, arising out of this appeal indicates that an interim order was passed on the appellant’s pr ayer made therein subject to the release of an amount of Rs. 1 lac in favour of the respondent No.1/claimant out of the awarded sum deposited by it with the lea rned Commissioner, Workmen’s Compensation, Kamrup, Guwahati. In view of the abov e determination, if meanwhile, in compliance of the order dated 17.09.2007, the opposite party No. 1/claimant has been released an amount of Rs. 1 lac, no recov ery of the amount in excess of Rs. Rs. 74,872.80 would be made. However, the bal ance amount (in any case) lying in deposit with the learned Commissioner, Workme n’s Compensation, Kamrup, Guwahati would be released in favour of the appellant forthwith. The appeal stands allowed in the above terms. No costs.