P L D 1965 (W (PLP)

Malik Muhammad Saeed for Appellants. S. A. Channah for Respondent. Dates of hearing: 5th and 7th October 1964. This is an appeal by Messrs Ahmad Bros, under section 30 of the Workmen's Compensation Act against the order of the Commissioner for Workmen's Compensation passed on 25‑3‑64 whereby he granted compensation amounting to Rs. 4,200 to the respondent Mahmudul Hassan, whose leg according to the finding of the learned Commissioner was broken in the course of his employment with the appellants.

2. The case of the workman Mahmudul Hassan was that while under employment with the appellants and fixing a cable of which the appellants had a contract he climbed a tree when other workers were also engaged in the cable work and as he was fixing the cable the branch of the tree broke and he fell down and broke his leg. He was treated in the Jinnah Central Hospital for three months but the fracture could not be reset. He thereupon obtained a certificate from Col. Aziz Khan of 50% disability. The employers took all kinds of contradictory stands; firstly that the accident did not happen during the course of the employment and out of the employment; secondly that on 30th June the workman was not in the service of the opposite party; and thirdly that he fell down from the tree while taking out honey comb from the tree. The learned Commissioner repelled all these contentions and awarded the amount of compensation upon the ground of 50% disability of the workman as certified by Col. Aziz Khan in the certificate Exh. 1‑A.

3. The sole question which Mr. Malik Muhammad Saeed urged before me in this appeal was that the learned Commissioner was not entitled to act upon the Medical Certificate Exh. 1‑A in the absence of the evi4ence of Col. Aziz Khan who had given this certificate. He urged that the learned Commissioner was wrong in saying that this certificate had neither been challenged nor denied by the opposite‑party (the employers).

4. I have gone through the objection filed on behalf of the employers, particularly para. 4 of it which was relied upon by Mr. Malik Muhammad Saeed. But in this paragraph there is no reference to any percentage of disability or to any Medical Certificate. It could not be because these things were not pleaded in the application to which this objection was a reply. However, after this certificate had been produced and exhibited and the workman had given evidence I find that no question in cross‑examination was asked of the workman with regard to the extent of his disability or with regard to this certificate which he had produced. I have also gone through the evidence of the two partners who were examined on behalf of the employers in this case and in those statements there is not a word questioning the percentage of the disability claimed by the workman or the accuracy of this disability as determined in the certificate of the Surgeon Col. Aziz Khan. I am also satisfied that no questions in the course of the argument were raised before the Commissioner with regard to the validity or correctness of the percentage of disability as set out in this certificate. It was for this reason that the learned Commissioner held and that in my opinion rightly, that this certificate had not been challenged or denied. The Evidence Act does not apply in terms to these proceedings which are of a summary nature. However, in the A present case apart from the certificate there was the evidence of the workman himself, who stated that he was rendered unfit for work. The same is the opinion set out in the certificate that he is completely unfit for any labour. The Commissioner must have seen the petitioner. I also called him and saw him in Court and it was apparent that his broken leg would not, support him any longer and he could only walk on crutches. The fracture was of the upper portion of the leg near the joint. That fracture was never set right. I am, therefore, of the opinion that the finding of the 50% disability by the Commissioner was correct. It follows that the amount of compensation and expenses granted by him was rightly granted. I accordingly dismiss this appeal. The stay order is vacated. K.B.A. Appeal dismissed.