1976 PLP 55 (PLC)

S. 30-Appeal-Failure to consider material evidence-Substantial question of law-Appeal entertainable-Dispute regarding date of accident

Commissioner ignoring evidence on point-Matter, held, appealable-Order of Commissioner, in circumstances, set aside and case remanded for disposal on merits. S. A. Channa for Appellant. Muhammad Abdul Qadir for Respondent. Date of hearing: 12th November 1975. This appeal has been filed against the order of the Commissioner reject ing the claim for compensation.

2. The appellant was in the employment of the respondent. According to him he sustained an injury while working in the godown of the respondent when a pile of bags fell on him. According to the Medical Certificate he suffered permanent partial disability to the extent of 20 %. After serving notice on his employer, a claim was filed on 21-12-1972 before the Commissioner under the Workmen's Com pensation Act. The claim was resisted by the respondent and it was pleaded that the appellant had never suffered any injury during the course of and arising out of the employment. Evidence was recorded. The claim was rejected on the ground that the accident was alleged to have taken place on 10th September 1972, which was Sunday and it being a holiday none was engaged to undertake any job. At this stage it may be pointed out that on 26-1-1973 an application was made to the Com missioner for amendment of the date on the ground that there was a clerical error and the actual date of accident was 10th October 1972. The amendment was allowed without notice to the respondent.

3. The only ground which has been urged on behalf of the appellant is that the finding of the Commissioner was based mainly on the date which was shown in the application and did not consider the date which was allowed by the amendment and, therefore, the error was patent and the order of the Commissioner suffered from serious legal infir mity. On the other hand it was pleaded on behalf of the respondent that the amendment was allowed without any notice and, therefore, could not be taken into consideration and no exception could be taken to the order of the learned Commissioner.

4. There can be no doubt that the grievance ventilated on behalf of the respondent is not unfounded and ex parts amendment should not have been allowed but the fact remains that the Commissioner failed to take notice of the amendment On account of this failure the date as originally shown formed the basis for the decision, it may be that the - change of date was an afterthought and was sought as a device to support a false claim, on the discovery that the date of accident shown in the application fell on Sunday when no work was done and thereby the claim would be defeated. All the same this could not be completely ignored. It was incumbent upon the learned Commissioner to have given a definite find ing as to whether there was a bona fide error or the change of date of the accident was contemplated as a device.

5. The failure to consider material evidence amounts to a substantial question of law. I, therefore, allow the appeal and set aside the impugned l order. The case is remanded to the Commissioner for disposal on merits in the light of what has been stated.