ORDER : 1. Heard Ms. S. Roy, the learned counsel appearing for the petitioner and also heard Mr. M.H. Rajborbhuiya, the learned counsel appearing for the respondent No. 1. None appears on call for respondent No. 2, despite notice being duly served. 2. This appeal under section 30 of the Workmen's Compensation Act, 1923 is directed against the judgment and order dated 2.9.2018, passed by the learned Commissioner, Workmen's Compensation in N.W.C. Case No. 118/2001, thereby awarding a compensation of Rs. 1,95,696 to respondent No. 1 along with the interest at the rate of 12% per annum. 3. This appeal was admitted for hearing by this court by order dated 9.6.2010, on the following substantial questions of law: (i) Whether, the injury sustained by the claimant not being one as specified in Schedule 1, Part-II of the Workmen's Compensation Act, 1923 and there being no evidence and finding at all to show that the alleged disablement of the claimant reduces his earning capacity in every employment which he was capable of undertaking at the time of accident, the learned Commissioner was justified in granting compensation in accordance of the provisions of section 4(1)(c)(ii) of the Act? (ii) Whether, the learned Commissioner was justified in taking into account the daily allowance in assessing the monthly salary of the claimant? 4. The respondent No. 1 is the claimant before the Commissioner, Workmen's Compensation. In the claim petition, the case of the respondent No. 1 in brief is that he was the driver of a truck bearing registration No. AS-2-7628, which was owned by the respondent No. 2. The said vehicle had met with an accident on 12.4.2001 at Kumarbori on NH-37 at about 5:30 a.m. It was stated that as a result of the accident, the respondent No. 1 had sustained grievous injuries and that he was shifted to Nagaon for treatment. It was projected that the Nillie out post under Jagiroad P.S. had registered a case, being Nellie O.P. GDE No. 223 dated 12.4.2001. It was stated that the respondent No. 1 was aged 30 years at the time of accident and used to earn a salary of Rs. 4,000 per annum and a daily allowance of Rs. 100 per month. The vehicle was insured with the appellant. It was stated that the respondent No. 1 was aged 30 years at the time of accident and used to earn a salary of Rs. 4,000 per annum and a daily allowance of Rs. 100 per month. The vehicle was insured with the appellant. On the ground that the respondent No. 1 had become permanently physically disabled, he had filed his claim petition before the Commissioner, Workmen's Compensation, Nagaon. 5. The appellant as well as the respondent No. 2 had contested the case by filing their respective written statement. The respondent No. 2, who was the owner of the offending truck had admitted the contents of the claim petition and had also submitted the documents relating to his vehicle including the insurance policy of the appellant. The appellant had denied its liability and disputed that the accident arose out of and in the course of employment in the insured vehicle. By taking usual pleas, the respondent No. 1 was put to a strict proof of his claim. In support of his claim, the respondent No. 1 examined himself as PW-1 and to prove that he had sustained injuries to his right wrist, head, chest and leg and the plaster applied was removed after IV2 months, he had exhibited various medical prescriptions, etc. He had also claimed that due to his injuries, he cannot perform his job. The respondent No. 1 had examined the doctor (PW-2), who had provided him treatment and had also issued an injury report (Ext. 7), wherein it was certified that the respondent No. 1 was suffering from (1) tenderness on the chest and (2) swelling, tenderness and restriction of movement of right wrist joint. As per the evidence of PW-2, the injuries were stated to be grievous in nature, resulting in 20% of disability and his earning capacity was reduced by about 40%. The appellant did not examine any witness. 6. Evaluating the evidence on record, the learned Commissioner, by referring to the evidence of PW-1 and PW-2, held that the appellant could not prove its defence and held that the respondent No. 1 had been able to prove the injury and his disability. By holding the age of the respondent No. 1 as 30 years and his salary to be Rs. 4,000 per month, compensation was computed as follows: 60% of Rs. 4000 × 203.85 × 40% = Rs. 1,95,696 7. By holding the age of the respondent No. 1 as 30 years and his salary to be Rs. 4,000 per month, compensation was computed as follows: 60% of Rs. 4000 × 203.85 × 40% = Rs. 1,95,696 7. Accordingly, the appellant was directed to satisfy the award with interest at the rate of 12% per annum from the date of adjudication till realization. 8. The substantial question of law No. 2 is taken up first. This court in a catena of judgments has settled the point that the daily allowance to an employee is required to be treated as a part of his salary. If one needs any authority for the same, the case of Oriental Insurance Co. Ltd. vs. Rafiqul Islam, (2015) 4 GLR 119 : (2015) 5 NEJ (Gau.) 46, may be referred to. Hence, following the ratio laid down in the said case of Rafiqul Islam (supra), the second substantial question of law is considered and answered in favour of the respondent No. 1, by holding that the learned Commissioner was justified in taking into account the daily allowance in assessing monthly wages/income of the respondent no. 1. 9. The substantial question of law No. 1 is now taken up. In this connection, the learned counsel for the appellant has referred to the cross-examination of PW-1 and submits that in the cross-examination, the PW-1 had categorically admitted that his driving licence was due for renewal after 2 months of the accident and that by submitted his original driving licence issued by DTO Kohima, his driving licence was renewed by the DTO, Diphu. The respondent No. 1 (PW-1) had specifically admitted that he was continuing on the basis of his driving licence. Hence, it is submitted that there was no loss of income and that the respondent No. 1 was continuing to drive on the basis of his driving licence. It is stated that the respondent No. 1 had admittedly not submitted his original driving licence in his evidence. Referring to the cross-examination of the doctor (PW-2), it is submitted that the said witness had admitted that he was not aware of the profession of the respondent No. 1. 10. It is stated that the respondent No. 1 had admittedly not submitted his original driving licence in his evidence. Referring to the cross-examination of the doctor (PW-2), it is submitted that the said witness had admitted that he was not aware of the profession of the respondent No. 1. 10. Per contra, the learned counsel appearing for the respondent No. 1 has submitted that the evidence tendered by the respondent No. 1 and his doctor, i.e., PW-1 and PW-2 could not be demolished during cross-examination and that their evidence to the effect that the respondent No. 1 suffered 20% disability and 40% loss of earning capacity could not be dislodged. It is submitted that the PWs were not cross-examined regarding the disability or the loss of earning capacity of respondent No. 1 and, as such, the award passed by the learned Commissioner, Workmen's Compensation was liable to be upheld. 11. This court in the case of National Insurance Co. Ltd. vs. Bimal Nath, (2009) 2 GLR 62 : 2009 (1) GLT 370, has held that while assessing the loss of earning capacity the same must be in relation to any employment which the injured employee was capable of undertaking at the time of accident. Therefore, in the present case in hand the learned Commissioner was not justified to grant compensation, on the basis of the prayer made without making attempt to find out whether or not the disability alleged to be suffered by respondent No. 1 had reduced the earning capacity in every employment which he was capable of undertaking at the time of accident. 12. On a perusal of the records as received from the learned Commissioner, the said records reveal certain noticeable facts, which according to this court is required to be brought on record. In this regard, the first point noted by this court is that the respondent No. 1 (PW-1) had admitted that he had renewed his driving licence and was continuing on the basis of his driving licence. The respondent No. 1 (PW-1), in his cross-examination, had stated that the plaster, (i.e. PoP) applied on his hand was removed after 1½ months and that his driving licence was renewed two months after the accident. The respondent No. 1 (PW-1), in his cross-examination, had stated that the plaster, (i.e. PoP) applied on his hand was removed after 1½ months and that his driving licence was renewed two months after the accident. Therefore, when the respondent No. 1 had admitted that he was continuing on the basis of his driving licence in the opinion of this court, there is no way to accept that the disability which the respondent No. 1 has suffered, had lead to his permanent partial disability with the meaning of section 4(1)(c)(ii) of the Workmen's Compensation Act, 1923. The second noticeable point, which in the opinion of this court is of immense significance is that in his cross-examination, the respondent No. 1 had stated that his plaster (PoP) was removed after 11/2 months. As per the case projected by the respondent No. 1, the accident had occurred on 12.4.2001. As per the prescriptions on record, POP was applied on 13.4.2001. As per the back page of the prescription (Ext. 4), plaster (PoP) was removed on 11.5.2001. Therefore, as per documentary evidence on record, the plaster (PoP) was removed on 11.5.2001, was prior in point of time claimed by the respondent No. 1. The period of time from 13.4.2001 to 11.5.2001 would mean that PoP was removed on 29th day of applying the plaster and not 11/2 months, as claimed by the respondent No. 1. Therefore, if the statement of respondent No. 1 (PW-1) is to be believed that the plaster was removed after 11/2 months, the said timeline would be around 3rd week of May 2001. This means that the claim petition was filed on 6.5.2001, i.e. prior to the removal of the plaster. Admittedly, on 6.5.2001, the date when the claim petition was filed, there is no evidence that any permanent partial disability was suffered by the respondent No. 1 and there was no document showing that there was any reduction in the earning capacity of the respondent No. 1. Moreover, the doctor (PW-2) had issued injury report on 18.5.2002. Therefore, when the claim petition was filed on 6.5.2001, there was no evidence on record showing that the respondent No. 1 was suffering from any permanent partial disability or that there was any reduction in the earning capacity by 40%. 13. The third noticeable fact is that although the doctor (PW-2) had issued the injury report (Ext. Therefore, when the claim petition was filed on 6.5.2001, there was no evidence on record showing that the respondent No. 1 was suffering from any permanent partial disability or that there was any reduction in the earning capacity by 40%. 13. The third noticeable fact is that although the doctor (PW-2) had issued the injury report (Ext. 7) on 18.5.2002, but he does not take the responsibility of certifying the status of the respondent No. 1 as on the date of issuing such certificate. By the said injury report (Ext.7) as well as in his evidence-in-chief, the said doctor (PW-2) had referred that he had examined the respondent No. 1 on 13.4.2001, which is the date on which the plaster (PoP) was applied on his hand. In the injury report, the PW-2 had stated that the injuries were fresh in nature. As the injuries were not fresh on 18.5.2002, this court is of the considered opinion that the doctor (PW-2) was referring to his examination of the respondent No. 1 on 13.4.2001. On 13.4.2001, the fracture suffered by him was definitely fresh. 14. It is seen that the X-ray report (Ext. 5) does not indicate any deformity in articular margins of the right wrist. Under such circumstance, the finding recorded in the injury report (Ext. 7) to the effect that the respondent No. 1 was developing “osteo arthritis” of the right wrist joint, leading to 20% physical disability and reduction in earning capacity by 40% is not found sustainable. Moreover, there is no evidence on record showing that as on 13.4.2001, i.e., one day after the accident had occurred, the respondent No. 1 had developed “osteo arthritis.” Therefore, in the considered opinion of this court, the contents of the injury report (Ext. 7) does not inspire any confidence. 15. The fourth noticeable point is in the said injury report (Ext. 7) does not inspire any confidence. 15. The fourth noticeable point is in the said injury report (Ext. 7), is that the doctor (PW-2) has certified that the 20% physical disability “may be permanent in nature.” Therefore, the doctor (PW-2) did not take the responsibility of giving any specific opinion that the respondent No. 1 had suffered any permanent partial disability, because the doctor (PW-2) had not stated for sure about the nature of disability, if any, suffered by the respondent No. 1, as such, in his deposition, the PW-2 had stated that the disability suffered by the respondent No. 1 “may be pertnanent in nature.” In the said context, this court would expect that if a professional is giving his opinion on physical disability, he must take the responsibility of certifying the firmness of his opinion. If a medical opinion is allowed to be passed on “may be” basis of surmises and conjectures, a Commissioner, Workmen's Compensation (now Commissioner, Employees Compensation) would not need a registered medical practitioner to give such an opinion because such an opinion can be given by any lay-man. Therefore, the use of words “maybe” leads to an invariable conclusion of this court that the medical opinion was based on mere surmises and conjectures and was not a definite or condusive expert opinion. In the absence of any report by the radiologist in the X-ray report (Ext. 5), that there was an on set of “osteo-arthritis” with “poly arthritis” of the right hand, in the opinion of this court, the respondent No. 1 had not been able to establish that he had suffered a permanent partial disability, within the meaning of section 4(1)(c)(ii) of the Workmen's Compensation Act. 16. Nonetheless, be that as it may, as the evidence of the doctor (PW-2) indicates that the respondent No. 1 had suffered an accident whereby he had suffered fracture of the first metacarpal bone, this court is inclined to accept the resultant disability as a mere temporary functional disability, which would come within the meaning of section 4(1)(d) of the WC Act, 1923 by presuming that such disability would have continue for a period not exceeding six months. Accordingly, in the considered opinion of this court, the respondent No. 1 is found entitled to half monthly compensation for maximum period of six months. Accordingly, in the considered opinion of this court, the respondent No. 1 is found entitled to half monthly compensation for maximum period of six months. The monthly income of the respondent No. 1 was assessed by the learned Commissioner, Workmen's Compensation at the rate of Rs. 4,000 per month. The resultant re-assessed compensation would now be as follows: 50% of Rs. 4,000 × 6 (months) = Rs. 12000 17. In view of the discussions above, in respect of substantial question of law No. 1, this court is constrained to hold that the learned Commissioner was not justified for granting compensation in accordance with the provisions of section 4(1)(c)(ii) of the Workmen's Compensation Act, 1923 because as per the considered opinion of this court, the nature of the injury suffered by the respondent No. 1 would qualify for an injury, which at best, can be said to have caused only a temporary partial disability to the respondent No. 1, which is within the meaning of section 4(1)(d) of the Act, because the respondent No. 1 had clearly admitted that he was continuing on the basis of his driving licence and, as such, the respondent No. 1 is found to have failed to prove that there was any reduction in his earning capacity. 18. Accordingly, this appeal stands allowed. The impugned judgment and order dated 2.9.2018, passed by the learned Commissioner, Workmen's Compensation, in N.W.C. Case No. 118/2001. The award in favour of the respondent No. 1 stands modified by reducing compensation to the extent of Rs. 12,000, as per the re-assessment made above. 19. As a result, the appellant shall be entitled to refund of the unpaid compensation lying with the learned Commissioner, Workmen's Compensation, Nagaon. It would be open to the appellant, if so advised, to recover the excess compensation already released to the respondent No. 1. 20. The parties are left to bear their own cost. 21. Let the LCR be returned.