JUDGMENT : This is an appeal under Section 30 of the Workmen’s Compensation Act, 1923 challenging the Judgment and award dated 13.11.2006 passed by the W.C. Commissioner, Kamrup in WC Case No.191 of 2003 thereby directing the insurance company to make payment of Rs. 86,478/- to the claimants along with interest @ 9% per annum on the entire amount w.e.f. from the date of accident till deposit. 2. The respondent No.1 as claimant filed a claim petition before the W.C.Commissioner stating that he was working as handyman under the opposite party No. 2 Nur Navin Ali with respect to vehicle No. AS-01/P- --6486 on 27.5.2003. The vehicle met with an accident and the claimant received physical injury owing to the same . The accident had taken placed at 11.30 am at Dadra O.P. under Hajo P.S. According to the petitioner, he sustained fracture on right humerus including injury over occipital region and because of this, he has been permanently disabled and cannot pursue his occupation. He has become devoid of any income and that is why a prayer has been made for payment of adequate compensation to him. The claimant stated that he was being paid Rs.2500/- per month as monthly salary. 3. On receipt of notice, opposite party No.1 and owner of the vehicle appeared and submitted written statement stating that the claimant was being paid Rs.2500/- per month as salary. He disclosed that the vehicle in question was covered under insurance of New India Assurance Co. Ltd at the relevant time. The insurance company being opposite party No.2 submitted written statement denying the claim in entirety. Upon such rival contention, the learned tribunal allowed the parties to lead their respective evidence. Claimant examined himself as PW-1 and Dr. SC Sharma as PW-2. The doctor’s prescription, x-ray report, medical certificate and police report were exhibited as Exhibits-1, 2, 3, 4 and 5 respectively. The claimant disclosed that in course of employment, he used to get Rs.2500/- per month as salary. He was duly cross examined by the insurance company when he stated that he was paid daily allowance of Rs.75/- and salary of Rs.250/- per month but he did not submit the salary certificate. However, owner was not examined who had admitted that the monthly salary of the claimant was Rs.2500/- . Dr. He was duly cross examined by the insurance company when he stated that he was paid daily allowance of Rs.75/- and salary of Rs.250/- per month but he did not submit the salary certificate. However, owner was not examined who had admitted that the monthly salary of the claimant was Rs.2500/- . Dr. SC Sharma on being examined as PW-2 proved medical certificate and claimed that the loss of earning capacity of the claimant was reduced by 35 % and it was permanent as the claimant had suffered fracture injury on his right humerous. Considering this part of the evidence, the learned W.C.Commissioner accepted the proposition that the workman was partially and permanently disabled because of the accident referred to above. He did not accept the averments of the claimant in the regard to monthly income. Taking into account the provision of Minimum Wages Act, he presumed that monthly salary of the claimant must be Rs.1980/- and accordingly made the calculation of compensation under Section 4(1) © (ii) of the Act of the 1923 W.C.Act. This judgment has been challenged by the insurance company before this court. This court while admitting the appeal on 5.10.2007 framed the following three substantial question of law: (i) Whether injury sustained by the claimant injured amounts to permanent partial disablement? (ii) Whether learned Commissioner had erred in law and facts in proceeding on the basis of that the monthly wages of the injured at the relevant time was Rs.1980/-? (iii) Whether a sum amount paid to a workman to cover any special expenses entailed on him by the nature of his employment included in his wages? 4. I have heard Mr. S Dutta, learned counsel for the appellant. None appeared for the respondent when the matter is called up for hearing although names have been shown in the Cause List. 5. The learned counsel for the appellant has drawn attention of the court to the evidence of PW-1 and 2. PW-2 categorically stated in course of his cross-examination that the claimant had suffered fracture injury on his right humerous. According to him, this injury is grievous one and is permanent and partial. He assessed the injury at 50% and loss of earning capacity at 40% and issued certificate on 29.7. 2003. PW-2 categorically stated in course of his cross-examination that the claimant had suffered fracture injury on his right humerous. According to him, this injury is grievous one and is permanent and partial. He assessed the injury at 50% and loss of earning capacity at 40% and issued certificate on 29.7. 2003. Subsequently, on 24.11.2004, he examined the patient again and found that the disability could be assessed at 40% and loss of earning capacity was 35 %. Upon such evidence being led, he was thoroughly cross examined by insurance company when he stated that the claimant was improving and the disability was partial. In reply to a pointed question, he stated that the injured can perform other works. 6. The question as to whether a workman has become permanently and partially disabled has to be decided on the basis of the opinion of qualified medical practitioner as required under Section 4-(i) © (ii) of the Employees Compensation Act, 1923. The guidelines for the purpose has been laid down by this court in the case of National Insurance Company Ltd. –vs- Bimal Nath reported in 2009 (1) GLT 370. Para-24 of this judgment may be referred to for the purpose of this case: “(24). From the aforesaid discussions, it is, therefore, clear that while assessing the compensation u/s 4(1) © (ii) what the learned Commissioner, is required to find out is –whether such disablement is of a permanent nature which reduces the earning capacity of the workman in every employment which he was capable of undertaking and not merely the particular employment in which he was engaged at the time of accident. For instance, if a Driver claims compensation contending that he suffers disablement of permanent nature , because of the injuries sustained by him, on his hands or legs , what is to be seen by the commissioner is whether such disablement reduces his earning capacity as Driver or reduces his earning capacity in any other employment which he was capable of undertaking depending on his skill. The burden of proving the disability and the reduction of earning capacity is obviously on the workman who claims the benefit of the Act. The burden of proving the disability and the reduction of earning capacity is obviously on the workman who claims the benefit of the Act. If the Commissioner finds that though the workman ‘s earning capacity has been reduced in the employment in which he was engaged at the time of accident but has not been reduced in respect of other employment, which he was capable of undertaking at the time of accident, depending on the skill, the compensation cannot be assessed u/s 4(1) © (ii) of the Act. In that event, the compensation has to be assessed u/s 4 (1) (d) of the Act. The workman , however, by adducing acceptable evidence, can establish that because of the injury his earning capacity has not only been reduced in respect of the work which he was performing before the accident but also in respect of any other employment, depending on his skill and also the skill required for other works, which he was capable of undertaking at that time, in which event it would amount to ‘permanent partial disablement’ provided the disablement is of a permanent nature. “ 7. Even in the aforesaid reported case, one of the appeals decided by that judgment involved contusion on right elbow joint with swelling of the right arm which is the injury in the present case as well and this court held that under such circumstance, it would only be a case of temporary disablement and not of permanent nature. That being the case, compensation in the aforesaid case was computed under Section 4(i) (d) of the Act. 8. Mr. S Dutta, learned counsel submitted that the case in hand is squarely covered by the law laid down in the case of Bimal Nath (supra). The condition precedent for holding that a workman has been permanently and partially disabled is that he cannot perform any other work for which his earning capacity in any other employment has been suffered. In the case in hand, in reply to a pointed question, PW-2 doctor replied that the victim was capable of doing any other work. This being the evidence of qualified medical practitioner, it cannot be said that it is a fit case for allowing compensation under Section- 4(i) © (ii). In the case in hand, in reply to a pointed question, PW-2 doctor replied that the victim was capable of doing any other work. This being the evidence of qualified medical practitioner, it cannot be said that it is a fit case for allowing compensation under Section- 4(i) © (ii). The first substantial question of law therefore is decided in the negative and against the workman and it is held that the compensation ought to have been decided under Section 4(i) (d) of the Act. 9. Coming to the second substantial question of law, it appears that the W.C. Commissioner did not accept the contention of the workman in regard to monthly salary merely because of the fact that he could not produce a salary certificate . It is a matter of common knowledge that in case of private employment, no appointment order or salary certificate is given. Herein this case Opposite party No.1 was the employer of the claimant and he submitted the written statement admitting that the claimant was being paid Rs.2500/- per month. This being the position, there was no reason as to why the learned Tribunal did not accept the contention of the owner for the purpose of ascertaining the monthly salary of the workman. The second substantial question of law therefore has to be decided in favor of the workman holding that the Commissioner committed error in not accepting Rs.2500/- as monthly wage. Hence, this issue is accordingly decided. The third substantial question of law in regard to considering daily allowance as part of monthly salary does not require any adjudication in view of the law laid down by the Hon’ble Supreme Court in the case of Ameeruddin & anr. –vs- United India Insurance company ltd,. (2011) 1 SCC 304 . 10. Considering the entirety of circumstances, the appeal stands partly allowed. The claimant respondent No. 1 is entitled to compensation under Section 4(1) (d) of the Employees Compensation Act. and he is to be paid compensation half monthly payment equivalent to 25% of the monthly wages for a period of 5 years and this amount comes to Rs.37,520/. Mr. S Dutta submits that while admitting this appeal, an interim order was passed by this court directing the tribunal to release 50% of the whole deposited awarded amount with the jurisdictional tribunal to the workman. Mr. S Dutta submits that while admitting this appeal, an interim order was passed by this court directing the tribunal to release 50% of the whole deposited awarded amount with the jurisdictional tribunal to the workman. Accordingly, the workman has already withdrawn more than 43,000/- which is more than that of entitlement and so there is no necessity of remanding the case to the trial court for making further calculation . However, it is observed that the amount already received by claimant shall not be refunded and the award stands satisfied. Appeal is allowed. The insurance company shall be permitted to withdraw the balance sum from the jurisdictional tribunal. No order as to cost.