P L D 1975 Lahore 266 (PLP)

In this first appeal under section 30 of the Workmen's Compensation Act, 1923, the appellant who was a Fireman/Pump and Pipe Fitter in the Fire Brigade of the respondent Railway, has called in question the order of a learned Commissioner, whereby the appellant's claim for compensation for the loss of eye-sight allegedly arising out of and in the course of respondent's employment, was rejected.

2. On the pleadings of the parties following issues were framed:- "(1) Whether the application is not' covered by the provision under Workmen's Compensation Act? O. P. R. (2) Whether the petitioner met with an accident arising out of and in `the course of employment resulting in loss of eye-sight? (3) Whether the petitioner is entitled to the reliefs as claimed in the application? (4) Relief." 2-A. On issue No. 1, it was found by the Commissioner as a fact that the appellant lost eye-sight (total in one and 90 % in the other eye) on account of Glaucoma of both the eyes not because of any accident or injury, arising out of or in the course of his employment, but on account of other natural causes including the appellant's peculiar personality and emotional make up. He also held that the disease was not an occupational disease peculiar to the appellant's employment, as would be covered by Part A or B of Schedule III of the Act. In reaching the above conclusions, the learned Commissioner was to a very large extent influenced by the fact that the appellant had not suffered from any disease of the eye and not even reduction of the eye-sight during the time that he worked as fireman; and further that he started feeling loss of eye-sight only after he had given up the job of Fireman and had been posted as Pump and Pipe Fitter the appellant's duty was not such as to expose his eyes to fire or fumes when extinguishing the fire. Apart from the above main finding of fact it has also been held that the application filed by the appellant and prayers made therein for treatment, enhanced pension and/or continuance it service till the age of 55, are not covered by the provisions contained in the Workmen's Compensation Act, and thus, the relief claimed, was not within the jurisdiction of the learned Commissioner.

3. Learned counsel for the appellant contended that as the application contained the essential information, therefore, the form even if defective should not be given any importance and the relief which could be granted under the law should have been allowed. Reliance in this behalf has beer placed on Firm Sunder Das-Vir Bhan v. Firm Jassa Singh Jiwan A I R 1926 Lah.

417. He has also contended that it was not necessary under section 3 of the Workmen's Compensation Act to prove any one single occurrence constituting an accident so as to entitle the appellant to compensation. On the other hand, relying on the reasoning in Chillu Kahar v. Burn & Co. Ltd., Howrach A I R 1953 Cal. 516, he argued that even if the appellant suffered small/tiny accidents when fighting fire and fumes over a period of time which continued to affect his eyes, this would amount to an accident arising out of and in the course of his employ ment; which would be covered by the said section and in any case, according to him, the appellant having contracted an occupational disease peculiar to his employment, this could constitute an accident under section

3. Lastly, it was contended that the learned Commissioner had misread the evidence with regard to the causes of loss of eye-sight. Learned counsel in this connection relied on certain passage from "Parson's Diseases of the Eye (Fourteenth Edition) by Sir Stewart Duke'-Elder", in order to show that Glaucoma and cataract could be caused by radiant energy like heat and X-Rays.

4. I agree with the learned counsel for the appellant that the application filed by him before the learned Commissioner contained all the necessary information. The form of the relief, undoubtedly was not properly worded but it cannot be ignored that at the stage of drafting of the application the appellant was not assisted/represented by any lawyer (the lawyer, however, represented him during the trial). Even the learned Assistant Advocate-General did not dispute the proposition that even if the relief had not been properly claimed in the prayer part of the application but it was deducible from the contents thereof, the learned commissioner could have granted the same. There was no legal impediment. In fact, section 22 itself provides that in case of an illiterate application and/or for any other reason if he (the applicant) is unable to furnish the required information in writing he can be helped by the Commissioner for the proper preparation/drafting of the application. The ruling cited by the learned counsel in the case of Firm Sundar Das-Vir Bhan, fully supports him in this behalf. I, therefore hold that the learned Commissioner was competent to grant the relief of compensation on the application filed by the appellant. His findings, therefore, in this behalf are reversed.

5. The remaining arguments of the learned counsel for the appellant can be considered together as they are essentially linked with the question of misreading of evidence. Under the first proviso to section 30 of the Act, no` appeal would be competent against any order of a Commissioner "unless al, substantial question of law is involved in the appeal".

6. With the help of the learned counsel I have carefully gone through the evidence. The main basis of the findings of fact by the learned Com missioner is certain admissions made by the appellant himself as P. W. 5, which are as follows:- "Some 5/6 years back I started feeling some loss in my eyes. And gradually the loss of eye-sight was there, and at that time I had com pleted 6/7 years duty as Pump and Pipe Fitter and before I was posted as -Pump and Pipe Fitter my eye-sight was correct. Both the statements are correct that the Fire, Master, Fireman and Jamadar only used to go in the party (and) when I was a Fireman and that when I was a Pump and Pipe Fitter I also used to accompany the Fire Party. There is no duty of any person on the Trailor and when the fire engine goes fireman, jamadars' duty is there and when need be for water sprinkling the Pump and Pipe Fitter is at the spot."

7. Learned counsel has tried to show that even as Pump and Pipe Fitter sometimes, the appellant would be expected to go near the fire (even if not to extinguish it). So he used to come in contact with, or near, it. If I were to agree with him, this would only mean difference of opinion with the learned Commissioner on question of appreciation of evidence. When on of question of pure appreciation of evidence the High Court differs with the Commissioner this difference does not amount to "a substantial question of law", therefore, an appeal under section 30 would not be competent. I have also looked at the question from another angle namely, that if I agree with the learned counsel that successive small occurrences can constitute an accident as visualised by section 3 of the Act and follow the reasoning in the Calcutta case (A I R 1953 Cal. 516), and/or even if I were to hold that subsection (2) of section 3 read with Schedule III, does not exhaust all possible occupational diseases peculiar to the appellant's employment which could be brought under subsection (1) of section 3; this opinion on legal questions would be of no benefit to the appellant unless the findings of fact with regard to the causes of the disease are set aside. In this view of the matter, as those findings cannot be set aside on the basis of any substantial question of law involved therein, therefore, it is not necessary for me to examine in detail the interpretation of the expression "accident" used in subsection (1) and/or provisions contained in subsection (2) of section 3 of the act. This appeal, therefore, has to fail on account of bar contained in proviso to section 30 of the Act. Thus, there is no alternative but to dismiss it. There shall, however, be no order as to costs. Appeal dismissed.