1982 PLP 720 (PLC(CS))

Ch. M. Maarif for Appellant. Iqbal Afridi for Respondents. Date of hearing: 25th March, 1982. This appeal is directed against the order of the learned Commissioner. Workmen's Compensation, East Division, Karachi, passed on 20th February, 1982, dismissing the claim of the appellant workman for compensation on account of burn injuries sustained by him on 7th November, 1979, while he was in the employment of the respondents. It may be pointed out at the outset that the appellant had alleged that both the National Refinery Ltd. respondent No. 1 herein, and Messrs Choudhry Muhammad Umer, the second respondents herein, were his employers. The learned Commissioner based his findings on the fact that though Dr. A. K. Memon, a private practitioner had assessed partial disability of the appellant as 40% on account of the injuries sustained by him and had given evidence before the learned Commissioner to that effect, the certificate of the Civil Surgeon, who had also examined the appellant shows Nil percentage disablement. The appeal was admitted for hearing to determine what was the effect of the non‑examination of the Civil Surgeon by the learned Commissioner.

2. I have heard Mr. Choudhry M. Maarif, who represented the appellant and Mr. Iqbal Afridi, who appeared for the 2 respondents. Mr. Afridi invited my attentions to the order, dated 2nd June, 1981, passed by the learned Commissioner which reads as follows:‑ "Both the parties present. The evidence of the Doctor Bachal. Notice issued to the National Refinery for today's appearance is cancelled as they have already been dropped as opponent No. 1 by consent of parties vide diary sheet, dated 21st January, 1981. The evidence of applicant shall be recorded on 16th June 1981, at 10‑00 A. M. by "consent of the parties." In view of the above order, the appeal in respect of the 1st respondent, the National Refinery Ltd. is clearly not maintainable as it was wholly absolved from alt responsibilities in respect of the claim preferred by the appellant.

3. The main contention of Choudhry M. Maarif is that the Civil Surgeon who had issued the negative certificate in respect of the appel lant was not examined before the learned Commissioner and no oppor tunity was given to the appellant to cross examine him No doubt, the Civil Surgeon was not examined. However, it appears that the appellant was referred to the Civil Surgeon on the basis of such an application having been made by Mr. Ghulam Qadir, the learned counsel for the appellant before the learned Commissioner. The appellant himself in his cross‑examination before the learned Commissioner admitted that his Advocate had moved an application on his behalf for his medical exa mination by the Civil Surgeon and that he was actually examined by the Civil Surgeon who had issued certificate in Form 'A' which bears his thumb‑impression. It appears that the appellant himself had brought the certificate from the Civil Surgeon. In view of this position, the authenticity of the certificate is not in doubt. It has been held by the Sind and Baluchistan High Court in the case of the Divisional Superintendent P. W. R. Quetta v. Mian Muhammad (1972 P L C 18), that the provisions of the Evidence Act are not applicable to the proceedings under the Workmen's Compensation Act. The non‑examination of the Civil Surgeon by the learned Commissioner therefore, does not invalidate the finding reached by him. There would appear to be 2 other circumstances, which go against the claim of the appellant against the 2nd respondent. The first is a document, dated 3rd June, 1978, evidencing the resignation of the appellant from the employment of Choudhry Muhammad Umar & Co. The appellant in his cross‑examination before the learned Commissioner had admitted having thumb marked it and given this resignation, If the appellant had resigned from the employment of the 2nd respondent on 3rd June, 1978, he could not have been in the em ployment of the said respondent on 7th November 1979, when he is said to have sustained the burn injuries. The second document in this be half is a Debit Voucher for Rs. 292‑50 dated 3rd June, 1978. As in the case of the resignation, the appellant in his cross‑examination before the learned Commissioner admitted the, execution of this Debit Voucher. The Debit Voucher provides that this amount was being paid to the appellant in full and final settlement. This document supports the fact that the appellant had resigned from the employment of the 2nd res pondent on 3rd June, 1978.

4. For the reasons discussed by me above, I find no merit in this appeal and dismiss the same.