2015 PLP 115 (PLC)

JUSTICE (RTD.) HAFIZ ABDUL REHMAN ANSARI (CHAIRMAN).

The appellant has filed the instant appeal under section 30 of Workmen's Compensation Act, 1923 before this Tribunal against judgment dated 3-1-2008 passed by Learned Commissioner Workmen's Compensation, Muzaffargarh whereby he dismissed the claim application of the appellant for the grant of Rs.1,50,000 as amount of Group Insurance from the respondent-establishment. The concluding Para of the judgment dated 3-1-2008 is reproduced below:

"In the light of the above, I reached to the conclusion that application of the petitioner is not maintainable by the Commissioner for Workmen's Compensation under section 10-B of the West Pakistan Industrial and Commercial Employment (Standing Orders Ordinance) VI of 1968. Therefore, application of the petitioner is rejected for want of jurisdiction."

2. The brief facts of the instant appeal are that the appellant was a person employed with the respondent with effect from 18-8-1997 bearing workman No.975267 who suffered with Paralysis during the course of his employment, became disabled up to 75% disability. The appellant requested the respondent for payment of amount of Group Insurance but the amount of Group Insurance was not paid to him. Thereafter, appellant filed an application before learned Commissioner Compensation, Muzaffargarh for payment of Rs.1,50,000 as amount of Group insurance by ratio of 75%.

3. The application was resisted by respondent-establishment and written statement was filed by respondent-establishment. The learned Commissioner Compensation, Muzaffargarh framed the following issues:

4. The appellant appeared as PW-1. The appellant also produced documentary evidence i.e. Wages Sheet as Mark-A, Certificate issued by E.D.O. (H) Muzaffargarh as Mark-B, Notification as Mark-C-1. The respondent-establishment has produced documents i.e. Presence Sheet Exh.R-II, Medical Certificate Exh.R-III, Letter dated 5-9-2006 Exh.R-IV and closed his evidence.

5. The Learned Commissioner Workmen's Compensation, Muzaffargarh after recording evidence of the parties vide judgment dated 3-1-2008 dismissed the claim application of the appellant. Hence, the instant appeal before this Tribunal.

6. Learned counsel for appellant submits that in medical certificate dated 21-6-2006 Exh.P.2 it is mentioned that appellant is 80% less of earning capacity. The appellant appeared as PW and produced documentary evidence and learned Commissioner Compensation Muzaffargarh wrongly dismissed the claim of the appellant. The appellant proved his case beyond any shadow of doubt that working capacity of the appellant is impaired 80%. It is admitted and hot fact that appellant was appointed in the mills on 19-8-1997 as a permanent workman. Learned Commissioner Compensation did not consider the documentary evidence Exh.P.1 and Exh.P.2. The appellant on account of paralysis became physical and mentally disabled. Learned counsel further submitted that appellant was medically examined by Physician of DHQ, Hospital Muzaffargarh and this material evidence cannot be brushed aside by the learned Commissioner Compensation for rejection of claim of the appellant. Learned counsel submits that findings of learned Trial Court on Issues Nos.2 and 3 are based on surmises and conjectures and contrary of the judgment of Hon'ble Supreme Court of Pakistan. Learned counsel for appellant placed reliance on PLD 1991 SC 183 titled as Muhammad Habib Khan v. Pakistan Tobacco Co, Ltd. and 2006 PLC 656 Lah. titled as Ahmed Textile (Pvt.) Ltd. v. Mst. Saddiqan Bibi and another.

7. Learned counsel for respondent vehemently supported the judgment of learned Commissioner Compensation Muzaffargarh and rebutted arguments advanced by learned counsel for appellant. Learned counsel submitted that mere outdoor chit and certificate issued by outdoor section of the Hospital. Subsequently, countersigned by M.S. DHQ Muzaffargarh is not proving that appellant suffered 80% incapacity on account of Paralysis. Learned counsel for respondent placed reliance on 1993 PLC 296 titled as Karachi Transport Corporation, Karachi v. Kajeer Khan and another, 1996 SCMR 1470 titled as B.P. Biscuit Factory Ltd., Karachi v. Wealth Tax Officer and another 2006 PLC 565 titled as Ahmed Textile (Pvt.) Ltd. through Manager v. Mst. Saddiqan Bibi and another.

8. I have heard both the learned counsel at length and perused the record of the lower court minutely.

9. For satisfaction of the Tribunal appellant was ordered to appear before this Tribunal in person who appeared in compliance of order of this Tribunal, he was walking with the support of . Further, Exh.P.2 was accepted making reliance on the same document Exh.P.2 "Adjudicating authority Employees Old Age Benefit Institution accepted the same document Exh.P.2 and allowed relief in the following words vide order dated 11-3-2009:

"Heard both the parties, perused the record, rules and regulation. It was established through documentary evidences presented by both the parties that petitioner became invalid during his insurable employment and Medical Superintendent of District Headquarter determined 80% invalidity on 21-6-2006 whereas respondents have admitted that petitioner was in the insurable employment till 1-7-2006. In view of the factual position, petitioner is entitled to get invalidity pension on the basis of his 9 years of insurable employment. I therefore allow this petition and direct the respondents to process petitioner's claim for invalidity pension accordingly." Learned Commissioner Compensation, Muzaffargarh did not bother to summon M.S. and Incharge of outdoor section who issued Exh.P.2 and countersigned by M.S, both were not summoned. So, Exh.P.2 remained un-rebutted by the respondent-establishment. Subsequently, the Manager of the Mills maneuvered a letter from M.S. DHQ Muzaffargarh that Chit/Certificate issued by outdoor section cannot be used by declaration of disability in any court of law. This letter was maneuvered by Manager of the Mills and for proving the same, the M.S who issued this letter did not appear before trial court for cross-examination who had already countersigned Exh.P.2. The judgments produced by learned counsel for respondent does not advance case of the respondent-establishment. The Learned Commissioner Compensation committed mistake and wrongly rejected the claim of the appellant. The impugned order dated 11-3-2009 passed by Learned Commissioner Compensation Muzaffargarh is hereby set aside. The instant appeal is allowed and claim of the appellant for group insurance Rs.1,50,000 is allowed. No order as to costs. SA/12/Pb.(Lab.Trib.) Appeal allowed.