P L D 1967 Karachi 707 (PLP)

This judgment will dispose of Miscellaneous Appeal No. 13 of 1964 and cross‑objections filed on behalf of the Karachi Port Trust in which both the parties have challenged the order of the Commissioner, Workmen's Compensation, Karachi in Cage W. C. 42 of 1960 decided on 20th November 1963. By this order the learned officer awarded Rs. 679 as compensation to the appellant.

2. Appellant Abdul Razzak who is employed as a permanent watchman in the service of the Karachi Port Trust at the relevant time was getting a total salary of Rs. 77 per month and also used to earn for working overtime. On 7th July 1959 at about 10‑45 p.m. the appellant met with a serious accident while on duty under the employment of the respondent by filling down from the "North Over Jetty Bridge" due to the alleged negligence of the respondent. He alleged that it was his duty to guard against persons who do away with the smuggled goods as well as stolen goods from the area which fell within his beat. Luring the course of the duty he climbed up the bridge and as the last wooden plank of it was in a broken condition he fell down and received multiple injuries and various fractures on his body. It is proved that the appellant was removed to the Civil Hospital where he was hospitalised up to 22nd July 1959 as an indoor patient and was discharged from the hospital. It is in evidence that thereafter the appellant resumed his duties. He claimed compensation for the injuries caused to him from the respondent, but as he found no relief on the ad‑vice of the Dock Labour Inspector, Government of Pakistan, he was referred to the Civil Surgeon, Karachi who convened a Medical Board consisting` of three leading doctors for his examination. On examination the appellant's disability was estimated at 50 per cent. permanent disability. This report was placed before the Chairman and the Chief Medical Officer for payment but it was rejected. Accordingly, on 6th August 1960, he filed an application before the Commissioner, Workmen's Compensation who, as stated earlier, allowed his claim to the extent of Rs. 679.75. The appellant's claim is that his disability should have been estimated at 50 per cent. The respondent's case is that the appellant's claim should have been rejected as his claim was filed beyond time. In any case, he should not have been awarded any com pensation because there was no loss in his earning capacity.

3. It is not disputed that the appellant met with the accident on 7th July 1959 and resumed his duties in the service of the respondent on 11th November 1959. He filed his claim in January 1960 but did not approach the Commissioner, Workmen's Compensation till 6th August, 1960. Under section 10 of the Workmen's Compensation Act no claim for compensation can be entertained by a Commissioner unless it is preferred within one year of the occurrence of the accident. Under proviso 3 of this provision of law the Commissioner is competent to entertain and decide any claim to compensation in any case notwithstanding that the claim has not been preferred in due time as provided in subsection (1) of section 10 if he is" satisfied that the failure to prefer the claim was due to sufficient cause.

4. It will be noticed that the claim of the appellant was barred by about one month. The learned Commissioner condoned the delay on the ground that1he appellant was in the employment of the opponent and was getting remuneration and, therefore, he did not want to fall out with his employer. He was making all the efforts available for getting the dispute amicably settled and came to the conclusion that a short delay of one month did not carry much importance as it was not a case of intentional negligence.

5. Mr. Nizam, the learned counsel for the respondent, has contended that ignorance of workman of rules or law cannot be a reasonable or sufficient cause for condonation of delay under section 10 of the Workman's Compensation Act. In support of his contention he placed reliance on the case of Consolidated Mines of Burma, Ltd. v. Maung TunE (A I R 1931 Rang. 175) and Abdul Matin v. Bidesi Rajwar and another (A I R 1939 Pat. 131). It was held in these cases that ignorance of the rules or the law on the part of the workman cannot be any reasonable cause within the meaning of the Act. In reply Mr. Safdar Shah, the learned counsel for the appellant has relied on two decisions of the Calcutta Court in (1) Salamat v. Agent, East Indian Railway A I R 1938 Cal. 318; and (2) Kesoram Cotton Mills Ltd. v. Bal Govind A I R 1953 Cal.

667. In the first case it was held that where the workman on returning to work three months after the accident was re‑employed by the same employers in the same workshop at the same rate of wages and he continued in that employment at those wages until long after the period of .ix months from the happening of the accident had gone by, it was a valid ground for not instituting a claim against his employer 'for' he was in work, and likely to remain in work for the same wages as before and that was sufficient cause for his not bringing proceedings under the Workmen's Compensation Act. In a Bombay case reported in Manshi & Co. v. Tukaram Teli (A I R 1948 Bom. 44) where a Claims Commissioner in the exercise of his discretion under section 10 entertained an application preferred beyond the limitation period on the ground that the applicant had genuinely misunderstood his position in law, the High Court in appeal refused to interfere with the discretion so exercised by the Commissioner.

6. The learned Commissioner has given two reasons for condoning the delay. In the first place, he has held that the appellant resumed his duties in the employment of the respondent and all along was trying to get his claim amicably settled. According to him, the reason for not filing his claim within time was that the appellant was anxious not to fall out with his B employer. Secondly being illiterate he was misled by the Dock Labour Officer. In my opinion these are good grounds in this case for condonation of delay. I would, therefore, repel the contention of the respondent that the learned Commissioner was not justified in condoning the delay.

7. The next question for consideration is whether the learned Commissioner was justified in compensating the appellant at 20 per cent. for partial permanent disability. The case of the appellant is that he should have been compensated at 50 per cent. partial permanent disability. On the other hand, the case of the respondent is that there was no loss in the earning capacity of the appellant; and, therefore, no compensation should have been awarded to him. The case of both the parties is that the appellant received serious bodily injuries and had multiple fractures on his body. According to the Medical Board consisting of the Civil Surgeon Dr. looms and Dr. S. A. Hamid, the result of the examination of the appellant was found as under:‑ "In view of the multiple fractures this patient has sustained, it is unlikely that he would be able to undertake any strenuous type of occupation. Under these circumstances his permanent disability is estimated at 50 % (fifty per cent:)." Dr. Qadri, the C. M. O. of the respondent has not disputed the shove conclusion of the Medical Board but disagreed with its finding and recommendation. In his opinion all the fractures had been healed and the appellant had not lost any earning capacity. In my opinion the learned Commissioner was fully justified in accepting the conclusion reached by the Medical Board. Under section 4(i)(c) of the Workmen's Compensation Act where permanent partial disablement results from the injury, which is not specified in Schedule I, such percentage of the compensation is payable in the case of permanent total disable ment as is proportionate to the loss of earning capacity permanently caused by the injury is to be awarded. In determining this it is the duty of the Court to further find out whether due to the injuries suffered by a workman his earning capacity has been reduced to such an extent that he will not be able to satisfactorily discharge his duties in every employment which he was capable of undertaking at the time of accident.

8. Mr. Nizam, the learned counsel for the respondent, has contended that the appellant is getting the same wages and is performing the same duties as he was doing at the time of accident and, therefore, it is not one of those cases where it can be said that his earning capacity has in any way been reduced. This contention has not impressed me. The fact that the appellant suffered from multiple fractures clearly shows that he will not be able to take up strenuous duties which he could under take in other employment at the time of accident. I would, therefore, agree with the learned Commissioner that the appellant was entitled to get compensation for the injury caused to him in the employment of the respondent.

9. Mr. Safdar Shah strenuously contended that the learned a Commissioner was not competent to disregard the opinion of the Medical Board that the appellant was entitled to claim compen sation at 50 per cent disability. In my opinion this contention is not well founded. It is not one of those cases in which the compensation has to be determined in accordance with the Schedule of the enactment. It is a case about which nothing is provided in the Schedule. In such cases it is open to the Commissioner to independently estimate the loss of the earning capacity of a workman for determining the compensation. Mr. Safdar Shah was unable to point out any material on the record to persuade me to take a different view of the principle on which the amount of compensation should have been awarded. I would, therefore, maintain the order of the Commissioner in this respect.

10. In the result, subject to the above remarks, both the appeal and cross‑objections are dismissed with no order as to costs. K. B. A. Appeal dismissed.