1990 PLP 540 (PLC)

‑‑‑Ss.10 & 30‑‑‑Quantum of compensation‑‑‑Bus Driver of PRTC suffering injury in accident in course of duty of workman resulting in disability to his right hand‑‑ Different Medical Boards examining injury on different dates and making different assessment of loss of earning capacity as (i) 50% disablement, (ii) unfit for duty as Driver, and (iii) 20%o disability‑‑‑Board assessing 50% disability consisting of 3 Doctors whereas Board assessing 20% disability not consisting of more than one Doctor‑‑‑Services terminated due to being incapacitated to perform duties‑‑Compensation of Rs.10,500 based upon 50% disability allowed by Commissioner challenged in appeal on plea that loss of earning capacity was only 20%‑‑‑Plea rejected and order of Commissioner maintained‑‑‑Held: after terminating services of Driver due to having become incapacitated, employer could not take a somersault to say that in spite of injury he was in a position to drive a bus. Sh. Ikramul Haq for Appellant. Ch. Sadiq Muhammad Warraich for Respondent. Date of hearing: 5th October, 1987. This is an appeal brought under section 30 of Workmen's Compensation Act challenging the decision dated 20‑4‑1987 of learned Commissioner Workmen's Compensation, Rawalpindi whereby the compensation amounting to Rs.10,500 has been awarded to the respondent.

2. The facts are that the respondent was driving a bus of the appellant on 11‑7‑1983 when an accident took place. According to the respondent he suffered injury out of and in course of his duty whereas the case of the appellant is that the right hand of the respondent contractured due t6 some disease and not on account of the accident. Quantum of compensation has also been challenged by the appellant. So far as this fact is concerned whether the respondent received injury due to the accident, it stands proved by the order of the Court, copy of which is Ex. P‑

2. In EX:P‑2 it is said that it was an admitted fact that the respondent had received injury on account of the accident. Now the appellant cannot turn round and contend in reply to the petition for compensation that the respondent did not receive injury out of and in course of duty. So far as the quantum of compensation is concerned it has been argued by the learned counsel for the appellant that the percentage of earning capacity was only 20% as is evident from the report of the doctor Ex. R‑

1. The respondent was examined by a medical board and the report of the board is Ex.P‑1, which is to the effect that the degree of disablement was 50%. There are three reports of the board which consisted of different doctors and were held on different dates. Ex.P‑1 shows that on 16‑4‑1986 the medical board had examined the respondent and the disablement was found to be 50%. Ex. R‑1 is the report of another medical board which examined the respondent on 3‑10‑1984. It does not give the loss of earning capacity. It is only to the effect that the respondent was unfit for the duty of driver. Ex. R‑2 is the report of a medical board which examined the respondent on 8‑5‑1985 according to which disability was reported as 20%. So far as Ex. R‑1 is concerned it is not helpful because it does not give any loss of earning capacity. Now it is to be seen whether Ex.P‑1 or Ex.R‑2 is to be relied upon. In Ex.R‑2 the names of the members of the board are not given. A board may consist of one doctor also, therefore, it cannot be said that Ex.R‑2 is based upon the medical board consisting of more than one doctor. On the contrary, report Ex.P‑1 is based upon the medical board consisting of 3 doctors. Proper thing for the appellant was to ask the board which had examined the respondent on 3‑10‑1984 to report about the loss of earning capacity. It consisted of three doctors. In these circumstances the learned Commissioner has rightly accepted report Ex.P‑1 of the medical board according to which loss of the earning capacity was determined as 50%. The fact that the appellant terminated the services of the respondent on account of the contracture of his right hand further shows that the respondent is not unfit for performing the duties of driver. If the loss of earning capacity had been only 20% the board could not have reported that he was not fit for duty. No doubt the way bills Exs. R‑1 to R‑14 show that the respondent had been performing duties after the accident, but they arc not helpful. So far as Ex.R‑14 is concerned the ticket number of driver is 138 whereas the number of respondent was

22. In way bills Ex.R‑1 to Ex.R‑13 name of the respondent no doubt appears but on some way bills number is not decipherable and some do not bear the ticket numbers. These way bills do not bear the signatures or thumb‑impressions of the respondent nor they were put to the respondent when he was in the witness‑box. After terminating the services of the respondent due to having become incapacitated to perform the duties the appellant could not take a somersault to say that in spite of the injury he was in a position to drive the bus. I therefore, come to the conclusion that the learned Commissioner has rightly awarded the compensation of Rs.10,500 to the respondent.

3. As a result the appeal fails and is dismissed. A.E./440/Lb.P Appeal dismissed.