1976 PLP 420 (PLC)

S. 30-Appeal-Appreciation of evidence-Doctor's evidence Doctor without putting injured workman to any physical test certifying disability-Commissioner relying totally on such opinion of doctor Question not merely of fact but also of law-Assailable in appeal Findings of Commissioner, in circumstances, set aside. Jan Muhammad Dawood for Appellant. S. A. Channa for Respondent. This is an appeal under section 30 of the Workmen's Compensa tion Act. 2. The respondent was engaged as a Labourer in the unloading of goods from a Truck. One bag of rice fell on him as a result of which he sustained injury. This incident took place on the 19th of August 1972. He approached Dr. Aftab Ahmad Qureshi on the 4th of October 1972 and a certificate assessing permanent partial disability at 40% was issued. The respondent, therefore, claimed compensation on the basis of his monthly pay at Rs. 450 per month, and application to the Commissioner was made. 3. The claim was resisted by the appellant a9d various pleas were taken. It was denied that the respondent was either a workman or -the injury was sustained by him in the course of employment. The ques tion of disability and average monthly wages were also disputed. In additions it was pleaded that the respondent did not submit himself for medical examination as asked by the appellant. 4. The Commissioner after framing the issues recorded evidence. On the assessment of the evidence, the evidence of medical officer was accepted and the compensation for Rs. 3,600 in addition to other charges was allowed. Aggrieved by this present appeal had been filed. 5. The learned counsel for the appellant at the outset pleaded that the application under Workmen's Compensation Act was not maintain able as according to Item No. 26 of Schedule 2 it was necessary that there should be 100 or more persons employed in the handling and trans port of goods and in the present case the number did not exceed 11. This contention is misconceived as this item requires that the handling and transport of goods should be in and within the premises of any) market. He conveniently ignored item No. 7-A which lays down that the persons employed in loading and un-loading of goods in the mechanically) propelled vehicles in the Karachi Division are workmen. The case of the respondent is clearly covered by this item. He was employed in the unloading of goods from the truck. 6. The next plea which has been raised is that the learned Commissioner had based his conclusion regarding disability solely on the evidence of the Medical Officer and that evidence was not such which could be treated an evidence in the eye of law and, therefore, it was not mere, question of fact but a question of law and could be assailed in appeal. I entirely agree with this contention. I have gone through evidence of Dr. Aftab Ahmad Qureshi but it does not take us any far. In fact it is not evidence which could form the basis of conclusion reached by the learned Commissioner. Of course he stated that he had assessed the permanent partial disability at 20 % asmuch as the injuries of sacsal region and right knee, resulted in persistent paid and difficulty in walking and bearing weighs but it is surprising to note that he did not put the respondent to any such physical test. In the absence of any such test the opinion of the Medical Officer has absolutely no value. Not only this but in the cross-examination he stated that by weight bearing he meant the body weight of the respondent. This is rather a strange explanation. The respondent was a Labourer employed in the lifting bags and this should have been taken in relation to lifting of that weight and not of the body. Indeed in the cross-examination a sugges tion was refuted that the assessment of disability was based on specula tion but looking to the fact that no physical or actual test had been made by him this suggestion could not be said to be unfounded. Since the disability of the respondent was based solely on the evidence of the medical officer this evidence is not such which can establish the disability, the case of the respondent must fail. It may further be noted that the respondent, as stated by him, took the treatment in the Civil Hospital for three months from the very beginning yet the doctor who treated him was not produced in evidence nor any certificate was obtained from him but instead another doctor was chosen for the reasons best known to the respondent. 7. In the. result I allow the appeal and set aside the order passed by the Commissioner. The amount which has been paid to the respondent be refunded by him.