1977 PLP 361 (PLC)

‑‑ Ss. 23 & 30‑Evidence before Commissioner ‑ Parties giving statement allowing evidence already recorded by Commissioner before being notified as such to be treated as evidence in case‑Objection in such regard cannot be raised at appellate stage. (b) Workmen's Compensation Act (VIII of 1923)‑ ‑‑ Ss. 3 & 4‑Commissioner determining nature and extent of disability but not giving any finding regarding loss of earning capacity‑Order of Commissioner, held, suffers from serious legal infirmity and cannot be supported. 1973 P L C 24 eel. These are two appeals under section 30 of the Workmen's Compensation Act against two orders of the Commissioner awarding compensation in two separate cases. These appeals have been consolidated as common questions of law are involved.

2. The respondents were in the service of the appellant. They sustained injuries by accident arising out and in the course of their employment. They claimed compensation and approached the Commissioner. The claim was resisted. The learned Commissioner after recording the evidence allowed the claims of the respondents. Aggrieved by this the present appeals had been filed.

3. The learned counsel for the appellant raised two legal objections. The first objection taken by him is that the Commissioner bad recorded the evidence of a witness before he was notified as Commissioner under the Work men's Compensation Act. There is no doubt that this irregularity was committed and objection to that effect was also taken before the Commissioner but after the Notification appointing the officer as Commissioner was issued the parties gave a statement allowing the evidence already recorded to be treated as evidence. This is clear not only from the comments which were called from the Commissioner but there is also an order to that effect on the order sheet of the record maintained by the Commissioner. Thus the appel lant cannot be permitted to agitate the objection at the stage. The evidence was admitted by the consent of the parties and to this no exception can be 10 taken.

4. The second plea which has been taken is that although the Commis sioner bad come the conclusion that the respondent had suffered Permanent partial disability but no finding was given as to whether the disability had reduced their earning capacity. There is considerable force in this contention. According to law it is the duty of the Commissioner to determine whether there was any disability and to what extent it had reduced the earning capacity. The learned Commissioner in the present case had simply determined the nature and extent of disability but he did not give any finding with regard to the loss of earning capacity. Consequently there has been non‑compliance with an important legal requirement. Since the orders suffer from serious legal infirmity they are bad in law and cannot be supported. In this view I am fortified by the decision of the High Court of Sind & Baluchistan repor ted in 1973 P L C 24.

5. In the result I allow the appeal and set aside the orders passed by the Commissioner and remand both the cases to him for determination of the extent of the loss of earning capacity and dispose of the cases accordingly. In case the parties desire to lead additional evidence they may be allowed an opportunity to do so.