P L D 1959 (W (PLP)

Akhtar Hussain for Appellant. Dingomal for Respondents. Dates of hearing : 23rd February, 2nd March and 13th April 1959. This is an appeal under section 30, Workmen's Compensation Act, VIII of 1923 from the order of Mr. Feroze Nana Ghulamall, in case No. 166 of 1955 dated 9‑7‑56, the then Chief Judge, Small Causes Court as Commissioner under Workmen's Compen sation Act, refusing to award the appellant full compensation for the injuries received by him during the employment of the respondents. Briefly, the facts are that the appellant was employed in the service of respondents as docker and his duty was in the Hole of the ship with the respondents' "Tindel" Sumar Abba to load and unload goods from the ships. In the course of his employment, on 26th February 1955 a pipe of Suigas fell down on his left leg and caused serious injuries to him. His leg was taken out and the pipe was removed with the help of a crane and the appellant was removed to the hospital where he was treated till 1st June 1955. According to him, the injuries received by him did not heal and a running sore had been formed on his leg. The appellant on the ground that he has been completely disabled to work as docker, where he is required to carry heavy loads, claimed Rs. 2450 as compensation on the basis of 50% permanent disability. The learned Commissioner awarded him only a sum of Rs. 245 at 5% of the estimated permanent disability. The evidence led by the parties before the Commissioner consisted of two medical certificates dated 14th June 1955 and 27th February 1956 by Leiutenant Col. M. H. Shah, the then Civil Surgeon of Karachi. In the earlier certificate the Civil Surgeon found : "Satisfactory union of fracture low end of left fibula with some minor disability", and estimated tile permanent incapacity of the appellant on 5%. In the second certificate the Civil Surgeon of Karachi found : "perfect union of the fracture with no appreciable loss of function". On the other hand the appellant produced a certificate of a private medical practitioner Dr. Mashkur Ahmed, M.B.B.S., dated 13th August 1955. According to him, "Since the left leg below the knee was crushed resulting in compound fracture of lower end of Fibula two plaster casts lasting for 22 and 25 days were applied but the bone has not been properly fixed and a discharging sinus has resulted at the place of injury which indicates that the bone is not healed". In his opinion, this has made the patient completely and permanently disabled for the work of loading and unloading which he used to do and in future will enable him only to do light work. He estimated the permanent disability of the appellant at 50%. The Commissioner relied on the certificate of the Civil Surgeon dated 14th June 1955 and awarded compensation to the appellant at the rate of 5% of permanent disability. The appellant has challenged the legality of the order of the Commissioner on the ground that the disability is to be assessed according to the disability to work the job on which the workman was employed and not to the extent of physical disability caused by the injury. Mirza Akhtar Hussain, the learned counsel for the appellant, has strenuously contended that in awarding com pensation under section 4 cl. C (ii) the loss in the earning capacity and not loss in physical capacity of workmen is to be estimated. He contended that the respondents were not prepared to take back the appellant on the same employment with them and there fore the principles laid down in A I R 1937 Cal. 526 should be applied and the appellant should be awarded compensation at 50% of permanent disability. Mr. Ramchandani, the learned counsel for the respondents, has strongly opposed this conten tion and supports the order of the learned Commissioner. The learned Commissioner in this case has not given any finding whether the appellant has been permanently disabled or partially disabled. Apparently, it is a case of partial disablement. Now partial disablement is also of two types, namely of a temporary nature and of a permanent nature. The appellant claims that his case is that of a permanent partial disablement. Ordinarily I would have also remanded this case for determining the question whether the injury caused to the appellant has resulted in permanent partial disablement or temporary partial disablement but I have seen the appellant in Court on several occasions and found him always limping. In my opinion, the medical certificates in this case along with the above mentioned fact clearly shows that the injury to the appellant has resulted in permanent partial disablement. Partial disablement is defined' in Clause (g) of section 2 of the said Act. It reads as under :‑ " "partial disablement" means, where the disablement is of a temporary nature, such disablement as reduces the earning capacity of a workman in any employment in which he was engaged at the time of the accident resulting in the disable ment, and, where the disablement, is of a permanent nature, such disablement as reduces his earning capacity in every employment which he was capable of undertaking at that time: Provided that every injury in Schedule 1 shall be deemed to result in permanent partial disablement". This definition imposes a duty on the Commissioner to ascertain to what extent such disability has reduced the workman's capacity in any employment which he was capable of undertaking at the time of the accident. In my opinion, the view expressed in A I R 1937 Cal. 526 cannot be applied to the facts of this case. I will prefer to follow the principle laid down in Governor‑General in Council v. Dewa Khanno (A I R 1947 Sind 184). The next question for consideration in this case is on what basis the appellant should be awarded compensation. The Commissioner has awarded compensation at 5% of permanent disablement. The learned counsel for the respondents has not been able to satisfy me on what process of calculation under the provision of the relevant law this compensation has been com puted. The learned Commissioner after determining the extent in accordance with section 2 (g) of the Act should have referred the principles of compensation laid down in section 4, Cl. C (ii) of the Act and awarded such percentage of compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity permanently caused by the injury. It was admitted by the learned counsel for the parties that the injury caused to the appellant is not one of the injuries as is mentioned in Schedule I and cannot be regarded as a scheduled injury. Under the circumstances, I will also follow the directions given in A I R 1947 Sind 184 and set aside the order of the learned Commissioner and direct him to call for evidence in terms of Cl. (g) of section 2, Workmen's Compensation Act, and determine afresh the award of compensation in accordance with section 4, Cl. C (ii) of the Act. For the reasons given above, the petition is allowed with costs. A. H. Petition allowed.