2005 PLP 202 (PLC)

This is an appeal filed by the Appellant against the order dated 31-7-2004, passed by the Commissioner Balochistan Employees Social Security Institution Quetta, whereby the claim of Appellant for payment/reimbursement of medical expenses amounting to Rs.3,90,351 to the appellant by the Institution has been declined. Brief facts of the case are that the Appellant filed a complaint under section 57 of the Provincial Emplyees Social Security Ordinance, 1965 (Balochistan Ordinance No.X of 1965) seeking payment/ reimbursement of Rs.3,90,351 incurred for the treatment of Nine Workers namely (1) Abdul Khaliq (2) Muhammad Farooq (3) Shahid Alam (4) Muhammad Saeed (5) Rizwan-ul-Haq (6) Syed Irfan Ali (7) Muhammad Siddique (8) Muhammad Adil and (9) Gulzar in Bentwa Anis Hospital and Agha Khan Hospital Karachi for want of facilities with the Institution with the averments that on 17-4-1998, at about 12:10 hours, its workers namely (1) Jan Muhammad (2) Abdul Khaliq (3) Muhammad Farooq (4) Shahid Alam (5) Muhammad Saeed (6) Rizwan-ul-Haq (7) Muhammad Ayoub (8) Syed Irfan Ali (9) Muhammad Siddiq (10) Muhammad Adil and (11) Gulzar after performing their duties were waiting for Bus to their Houses under a tree outside the Factory gate, a Taxi ran over them causing injuries to 10 workers and death of one at the spot. The above named injured workers were taken and admitted to the Bentva Anis Hospital and Agha Khan Hospital Karachi for want of facilities within the Institution and an amount of Rs.3,90,351 was spent on medical expenses. Appellant/Complainant prayed for payment/ reimbursement of medical expenses amounting to Rs.3,90,351 to the Appellant by the Institution or the adjustment of the same against the monthly contributions being paid by the company to the Institution, while disposing off the complaint the learned Commissioner Balochistan Employees Social Security Institution Quetta declined the claim of Appellant mainly on the ground of objections raised by the Respondent with regard to incident occurred outside the place of work, not in the premises of Factory and expenses incurred by a secured person on treatment outside the medical Services provided by the Company, the aforementioned order was assailed in appeal, while disposing of the mater, my learned predecessor accepted the appeal by setting aside the impugned order passed by the learned Commission Balochistan Employees Social Institution Quetta vide order dated 12-9-2001 passed by this Court. Challenged in appeal before the Hon ble High Court of Balochistan, after hearing the parties through their Counsel, the matter was remanded back to the Commissioner with certain observations vide order dated 2-12-2002, passed by the Hon ble High Court of Balochistan. After remand the Parties did appear before the learned Commissioner Balochistan Employees Social Security Institution Quetta whereby once again the claim of the Appellant/Complainant has been declined vide order dated 31-7-2004, passed by the Commissioner Balochistan Employees Social Security Institution Quetta, hence the filing of appeal under consideration with the averments that the impugned order passed by the Respondent No.1 is contrary to Law, facts and principles of natural justice as after remand the witness of the company was neither cross-examined by the Respondent nor rebutted the same by adducing evidence, meaning thereby that whatever stated or brought on record by the Complainant/Appellant has been accepted by them, moreover the claim of the company was for payment/ reimbursement of medical expenses incurred by it on the instructions and approval of authorised Medical Officer and the Head Office of the Institution, neither the company nor the workers claim compensation of the injured disablement which has already been paid by the company from its own resources, though it was the duty of the Institution to pay the same. Similarly the medico-legal or non-medico legal nature of the accident and injury had nothing to do with the obligations of the Institution nor such kind of excuse was sufficient to make the claim of appellant defective as in the matter in hand, the injured persons were provided treatment by the authorised and competent Institution which too with the consent and instructions of authorised officers of Institution but these important points have not been considered by the lower forum which ultimately caused grave miscarriage of justice to the Complainant/Appellant, lastly he prayed for setting aside the impugned order and directions to the Institution for payment/reimbursement of medical expenses of Rs.3,90,351 or in alternate permission to adjust the same against the monthly contributions paid by the company to the Institution. On the other hand the Respondents vehemently opposed the appeal and supported the impugned order. After having heard the learned Counsel for the parties and going through the entire record with care and caution it appears that in the instant matter Company claimed only the medical expenses incurred by it on behalf of the Institution and not compensation for injury or death caused to the workers. Admittedly the injured workers were not made party as they received full medical treatment paid by the company from its own resources. In view of sections 57 and 59 of the Social Security Ordinance, the employees, institution and employer can approach a competent Court of Law/Forum for redress of their grievance, if any, so the objection raised by the Respondent in respect of filing complaint by an unauthorized person is not sustainable under the law. So for as the objection with regard to accident took place out side the Factory is concerned, in my opinion the accident in question fell within the definition of accidents provided under this Ordinance because the theory of notional extension was very much available as the workers certainly were in the course of their employment by waiting for conveyance at a point though outside the Factory, definitely the workers at the relevant time were not independent and unconnected private activity, therefore, were entitled to get their compensation received under the Workermen s Compensation Act. Apart from this it is a well-known principle of Law that the justice should not be denied only on the basis of technicalities if it has been otherwise proved through reliable and unimpeachable evidence. It would not be out of context to mention here the Company or workers did not claim compensation for injury or death from the Institution statedly on account of high expenses on medical treatment rather paid the same from its (company s) own resources nor any Workers came forward for redress of his grievance as they have already been compensated by the Complainant accordingly. It has also been established and not even disputed by the Respondent that the Institution had only a Dispensary at Hub having no Hospital or Medical Officer of the Institution or professional Doctor as provided under section 45(1)(b), therefore, the workers were taken to Bentva Anis Hospital and Agha Khan Hospital Karachi, the matter was duly intimated to the Respondents who did not raise any objection rather advised the Appellant for continuance of treatment meaning thereby that the treatment to the workers remain `continued with the consent and advice of Respondent, in this respect certain Documents sent by the Appellant to the Respondents with their positive response are also available on record. It would not be out of place to mention here that the sickness benefit of wages in cash to the workers provided under section 35 of Ordinance for the entire period when they could not perform their duty had already been paid by the Respondent/Institution but denied the payment of expenses incurred in the treatment purpose being a huge amount i.e. Rs.3,90,351 which cannot be allowed nor approbate and reprobate is permissible under the law as no hot and cold can be blown in same breath. So far as the objection for non-filing of Suit before the competent forum i.e. Civil Court is concerned in view of section 62 of PESS Ordinance, 1965 a Social Security Court, shall have all the powers of a Civil Court, the relevant portion is quoted herein below. Powers of Social Security Court.

A Social Security Court shall have all the powers of a Civil Court for the purposes of summoning and enforcing the attendance of witnesses, compelling the discovery and production of Documents and material objects, administering oath and recording evidence, and such a Court shall be deemed to be a Civil Court within the meaning of section 195 of the Code of Criminal Procedure, 1898 (Act V of 1898). (2) Notwithstanding anything contained in any other Law, a Social Security may for the purposes of deciding any appeal, examine such witnesses and take such evidence as it considers necessary. (3) A Social Security Court may make such order with regard to costs incidental to any appeal as it thinks fit. (4) An order of a Social Security Court shall be enforceable as if it was a Decree of a Civil Court. Similarly under section 36 of I.R.O. 1969, it has clearly been mentioned that a Labour Court shall for the purpose of adjudicating and determining any Industrial dispute be deemed to be a Civil Court and shall have the same powers as are vested in such Court under the Code of Civil Procedure. Apart from this after availing 4 forums and participating in the proceedings by without raising any objection on the point of jurisdiction it cannot be raised nor allowed in a belated stage. Nutshell of the above discussion is that the Appellant has succeeded to prove its claim against the Respondent, therefore, in my opinion is entitled for the relief claimed for. In view of above mentioned facts and circumstances of the Case, appeal filed by the Appellant is hereby accepted, order dated 31-7-2004, is set aside and Respondent No.1 is directed for payment of Rs.3,90,351 to the Appellant for medical expenses incurred by it. Appeal filed by the Appellant is disposed of accordingly, parties are left to bear their own costs. File after completion and compilation be consigned to the record. H.B.T./40/Q Appeal accepted.