1988 PLP 985 (PLC(CS))

Ibne Ayub for Respondent. Date of bearing: 28th February, 1988. This is an appeal filed by the appellant establishment against an impugned order dated 24-9-1987, passed by the Commissioner for Workmen's Compensation, Central Division, Karachi, who had allowed the application under section 10 of the Workmen's Compensation Act, 1923 of the respondent workman granting him compensation of Rs. 21,00 plus Rs. 100 as witness fee, pleader's fee and the cost of the application.

2. Briefly stated the facts of the case were that the respondent claimed to have been employed as a labourer by the appellant establishment who were a Construction Company engaged in the construction of Agha Khan Hospital and that on 21-5-1985, while he was on duty, he was ordered by the supervisor Yasin to carry wooden shuttering to 2nd floor through the wooden stairs from the 1st floor and while he was carrying the burden he lost his balance and fell down inside the gutter-line and received serious injuries, so, he was immediately taken to Liaquat National Hospital where he eras admitted and remained under treatment for 24 days from 21-5-1983 to 19-6-1983. The respondent further claimed that after some recovery he joined the duties, but, after a month and a half he again developed trouble, so, he was again hospitalized on 6-7-1983 and remained there upto 9-7-1983 so he became unfit to perform any kind of duty due to the said incident and the cause of disability. Further, the respondent claimed that when he approached the appellant establishment for his examination and assessment of disability he refused to do so; thus, on 10-8-1984, he got himself examined by a qualified Medical Practitioner who assessed his permanent partial disability at 100 per cent. As his wages were Rs.800 per month, therefore, he claimed compensation of an amount of Rs. 21,000.

3. The appellant establishment resisted the application of the respondent on the grounds that the alleged injury to the respondent did not arise in the course of employment and it was caused by the wilful disregard of the safety devices made for avoiding the crossing of an open wench which he was not required and obliged to cross in any case and according to his own conduct, he had ostensibly become temporarily impotent which had no relevancy to any admissible claim under the Workmen's Compensation Act, 1923 and as the respondent had already filed a Civil Suit, therefore, he was not competent to file the present application before the learned Commissioner for Workmen's Compensation. It was further claimed by the appellant establishment that the respondent had never approached them for assessment of any disability nor in fact there was any permanent disablement of learning capacity and that the certificates were in-admissible in evidence, so, his application was liable to be dismissed.

4. The respondent has examined himself and had produced his witnesses, manly, Munawar and Dr. Nayar lqbal, while one Dr. Mustansar Dawood Hay Jhaveri was also summoned and examined. On the other hand, the appellant establishment, though several opportunities were accorded, did not produce any evidence in rebuttal of the claim of the respondent. Thereafter, the, learned Commissioner for Workman's Compensation passed the impugned order, hence, the present appeal.

5. I have Neared Mr. S.A.M. Jami, the learned Advocate for the appellant establishment and Mr. Ibne Ayub, the learned representative on behalf of the respondent and have also carefully perused the record and proceedings of the case an well as the written arguments submitted by both the parties. It is an admitted position that the appellant establishment did not produce anything oral or documentary to establish that the respondent had sustained injuries on his own accord and that the management was not responsible for the same. On the other hand, there is sufficient cogent evidence on behalf of the respondent worker that supervisor Yasin had ordered him to perform the duties of danger, in nature and that through the authentic and qualified evidence of Doctors, on record, it is also beyond any doubt an established position that the respondent had remained in Liaquat National Hospital under treatment and sustained 100% disability. There is nothing in rebuttal of the evidence of these two-Doctors. Mr. Ibne Ayub, the learned representative for the respondent has very convincingly submitted that under section 4(1)(c) of the said Act, where the permanent partial disablement results from an injury which is not specified under Schedule. I, such percentage of the compensation was payable in the case of the permanent total disablement as is proportionate to the loss of earning capacity permanently caused by the injury. A In this respect, he has placed his reliance on the cases reported in 1967 P L C page 703 and 1967 P L C

224. I see much force in all the contentions of Mr. Ibne Ayub, the learned representative for the respondent and would, therefore, hold that the learned Commissioner for Workman's Compensation has rightly and competently passed the impugned order and it needs not to be interfered. On the other hand, Mr. S.M. Jamil, the learned Advocate for the appellant establishment had miserably failed to submit anything cogent in rebuttal of any of the pleadings of the learned representative for the respondent. The appellant establishment had not led any evidence in this case and for this it should be held responsible. Bare words, that the respondent was not entitled to receive total disablement compensation of Rs. 21,000 and that the learned Commissioner for Compensation was not competent to pass the impugned order could not be relied upon. I see no force in the present appeal.

6. For the reasons discussed by me above, I see no reason to interfere with the impugned order and I would accordingly maintain the, same. The present appeal is dismissed. The learned Commissioner for Workmen's Compensation, Central Division, Karachi is directed to immediately release the amounts, already deposited with him by the appellant establishment in favour of the respondent Habib Khan S/o Muhammad Ismail, after due verification. A.E./1273/Lb. S. ???????? Appeal dismissed.