MOHABBAT DAL FACTORY Versus MUHAMMAD SARWAR
In this .appeal filed under section 30 of the Workmen's Compensation Act, 1923, an employer (a Dal Factory) has called in question the order dated 30-4-1973, passed by a learned Commissioner for Workmen's Compensation, whereby a sum of Rs. 7,700 was awarded as compensation to Muhammad Sarwar respondent who was held to have suffered loss of earning capacity to the extent of 70 % on account of an accident arising out of and in the course of his employment with the appellant wherein he suffered an injury-right arm crushed-as a consequence whereof it had to be amputated above the elbow joint.
2. On the pleadings of the parties, following issues were framed:-
(1) Whether the . appellant/factory was subject to the Workmen's Compensation Act?
(2) Whether the accident was due to the fault of the respondent?
(3) What was the monthly wage of the respondent?
(4) What is the percentage of loss in, earning capacity ?
(5) If the respondent is entitled to compensations, what would be its amount?
Issues Nos. 1 and 2 were decided against the appellant. On issue No, 3 it was held that the respondent was getting Rs. 150 as monthly wage prior to the accident. His case, therefore, fell within the group of workers getting Rs. 100 to Rs. 150 as monthly wage. On issue No. 4, reliance was placed on certificate (Exh. P/4) issued by one Dr. Ali Raza Jan of a Nursing Home wherein the respondent was treated. In this certificate, the percentage of the loss of earning capacity was given as 70 %. The learned Commissioner observed that he also thought that this estimate of loss in earning capacity, in view of the circum stances of the case, was in accord with the provisions of the Workmen's Compensation Act, therefore, he fixed the same percentage, namely, 70 y, and accordingly under issue No. 5 worked the compensation in accordance with Schedule IV Column (3) at Rs. 7,700.
3. Learned counsel for the appellant, in the very outset, expressed his realisation that the appeal under section 30 to this Court is competent only op substantial questions of law. He, however contended that the two contentions he wanted to raise in fact related to such questions. They are-
(i) that the respondent did not fall within the definition of "Workman" as provided in the Act ;
(ii) that the doctor not having appeared as witness his certificate (Exh. P/4) qua percentage of loss in earning capacity relied upon by the learned Commissioner was inadmissible in evidence.
4. On face, both the points appeared as if they arose out of substantial questions of law but, after hearing the arguments in support thereof, I have come to the conclusion that essentially they (the arguments) relate to the appreciation of the material before the learned Commissioner.
5. Learned counsel, in support of his first contention, argued that the learned Commissioner has wrongly held that there were 13 workmen in the factory, therefore, it did not fall within clause (ill of Schedule 11 to the Act read with the definition of "Workman" as contained in section 2(1)(n), These provisions read as follows:-
"2.-(1) hi this Act, unless there is anything repugnant in the subject or context,- .
(n) `Workman' means any person (other than a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer's trade or business) who is-
(i) a railway servant as defined in section 3 of the Railways Act, 1890, not permanently employed in any administrative, district or sub- divisional office of a railway and not employed in any such capacity as is specified in Schedule 11, or
(ii) employed on monthly wages not exceeding five hundred rupees, in any such capacity as is specified in Schedule 11.
Whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in. writing; but does not include any person working in the capacity of a member of the armed forces of Pakistan and any reference to a workman who has been injured shall, where the workman is dead, include a reference to his dependants or any of them.
"SCHEDULE II-List of persons who subject to the provisions of section 2(1)(n), are included in the definition of workmen.
The following persons are workmen within the meaning of section 2(1)(n) and subject to the provisions of that section, that is to say, any person who is--
(ii) employed 1 in any premises wherein, or within the precincts whereof, on any one day of the preceding twelve months, ten or more persons have been employed in any manufacturing process, as defined in clause (g) of section 2 of the Factories Act, 1934, or in any kind of work whatsoever incidental to or connected with any such manufacturing process or with the article made, and steam, water or other mechanical power or electrical power is used but not persons employed solely in a clerical capacity in any room or place where no manufacturing process is being carried on; or
According to the definition, a person in the position of the respondent is not .a workman ,unless, apart from other considerations, his case falls within various clauses relevant in this behalf contained in Schedule II. Learned Commissioner has fund it as a fact that at occasions within twelve preceding months, at lest 13 persons worked in the factory. The precise objection of the learned counsel is that even though the number, when totalled, would be 13 but some of them like Pandis and a person who works on contract basis would not be included in those persons. There is no justification for making such a distinction. In clause (ii) of the Schedule 11, the expression "Workman" has not been used. Instead, it has been provided, "ten or more persons have been employed to any manufacturing process". Here, for a person to have been employed in any manufacturing process, definition of workman "as contained in section 2(1)(n) cannot be imported once again. The expression has to be given its ordinary meaning, namely, that the requirement is that those persons should be employed to any capacity in any manufacturing; process. The contractor and the Pandis pointed out by the learned counsel. undoubtedly according to the finding of the learned Commissioner were employed in the premises of the appellant in the manufacturing process. Otherwise, too, I do not agree with the learned counsel that a workman who, instead of getting wages on daily, weekly or monthly basis, contracts to, receive it on work or piece-work basis would riot be included within the ambit ,of the expression "employed in any manufacturing process.
6. Learned counsel next contended that the statements of the respon dent's witnesses including Muhammad Aslam (P. W. 1) who was described by him as interested, with regard to the monthly wages of the respondent being Rs. 150 per mensem should not have been believed. On the other band, his case is that the respondent's employment was of casual nature and if he worked on daily basis getting Rs: 5 per day, it would not be possible to hold that he was getting Rs. 150 per mensem as monthly wages. The question of daily, monthly or yearly wage arises only in the context of amount of compensation and has no direct relevancy in so for as the definition of workman is concerned except when it exceeds certain limit. It, might indirectly be referred to m determining -whether the employment is of casual nature. In this case, evidence does not show that the respondent's employment was of casual nature. He was regularly employed to work on and near the expeller. Though the wage might be on daily basis, it cannot be ignored that the Commissioner has, on evidence, found that his monthly wage would come to Rs. 150 per mensem. No doubt, in the order main reliance in `this behalf has been placed on the statement of Muhammad Aslam, but it cannot be said that the learned Commissioner did not use the statement of the respondent as P. W. 2 and Khadim Hussain P. W. 3, as corroboration ,of what was stayed by Muhammad Aslam. The admission made by the appellant's witness namely, Muhammad Afzal (P. W. 2) that the respondent was getting Rs. 5 as daily wage-was used as a supporting material, on facts, therefore, there is no justification for interference with the finding of the learned Commissioner. it is a matter of pure appreciation of evidence and does not involve any question of law muchless a substantial question. The ruling cited by the learned counsel with regard to the elucidation of the expression "casual employment", namely, Mst. Fatima v. Piroo P L D 1960 Kar. 395 does not support the appellant. On the contrary, the work done and the nature of employment of the respondent with the appellant even, according to this sailing, shows that it was not a casual employment, in the light of the above discussion, I find no merit in the first contention raised by the learned, counsel.
7. In support of the second contention, learned counsel contended. that in view of the fact that on account of the amendment in Schedule I to the Act whereby the categories of injuries and compensation therefore have been, considerably increased. It has become absolutely essential in matters relating. to medical expert advice and opinion, that the Commissioner should not decide cages under the Workmen's Compensation Act without examining a doctor/medical expert. When questioned as to whether there is any provision in law requiring the Commissioner (as a mandate) to examine a doctor, learned counsel answered in the negative expect that he repeated the same argument and also relied on the provision section 25 whereunder, when examined, the statement of a medical witness is to be recorded as nearly as may be word for word. In so far as the general proposition is concerned, I do not agree with the learned counsel that unless a medical expert is examined as a witness the proceedings and order of the Commissioner would be either incompetent or without jurisdiction. It would depend upon the circumstances of` each case whether the Commissioner cannot decide for himself the questions which might require medical opinion. It goes, however, without any fear of contradiction that if a case before the Commissioner is simple, the extent of the injury and results/consequences thereof can either be stated or demonstrated by the victim and/or his other non-expert witnesses an can also be observed by the Commissioner, be need not examine an expert. For example, if it is a question of the chopping off a finger which can be made the subject-matter of a statement by any witness-no matter whether he is a doctor or a layman- and/or the fact can be observed by the Commissioner with a naked eye, in my view, it would not be necessary to examine a doctor expert. This is a clear example but there can be other less vivid cases in which the Commissioner might be able, on account of his experience, learning and knowledge, to make assessment and opinion of his own either qua the nature of the effect of the injury. If this is possible, it cannot at all be said that the further question of the loss in earning capacity cannot be assessed without help of the doctor. In cases covered by specified items in Schedule I it will only be a question of fitting the injury in a particular item and then the calculation would easily follow. But in cases not so covered, the Commissioner would be able, on account of his own experience and knowledge of human conduct and capabilities, to make the assessment in loss of earning capacity. Learned' counsel, in respect of the same contention, also argued that the Commissioner relied on the certificate issued by the doctor with regard to the percentage of the loss in earning capacity and because according to him, the certificate with out its proper proof was inadmissible, therefore, the Commissioner in this behalf. has committed an illegality, 1 do not agree with him. When the assessment has to he made by the Commissioner if he looks at certain document and/or studies other material including books, it does not mean that he is not making his own judgment or assessment. In this case if he treated the certificate with regard to which there was no material before him that it was a forgery, as a working base and he made his own assessment also that in the circumstances of the case the estimate of 70 % loss was not against the spirit and provision of the Act, there is nothing illegal in his reading such a certificate.,
8. Learned counsel then contended that the case of the respondent could not have been treated as one falling within item No. 3 under the heading "Amputation cases-upper limbs (either arm)" because it required measure ment of the stump from certain reference points in the arm, namely, agremion and `elecranon' and as, according to the learned counsel, the doctor had not given the measurement in the certificate, therefore, the Commissioner could not have made the said certificate as the working base for his own judgment. It is not in dispute that the arm of the respondent was amputated above the elbow joint. It is also not disputed that he had appeared before the Commissioner who had seen the amputation/stump. Item 3 provides 70% loss of earning capacity in case of amputation "from 8' from tip of acremion to less than 4 below tip of elecranon". Even though a measurement with some amount of exactitude in Court any person with an ,ordinary foot-rule would be enough for deciding such like matters, yet in this case it was not necessary even to make any measurement, at all. The use of difficult medical expressions like `acromion' and `elecranon' has in my view, given rise to this argument. If properly analysed and understood they mean nothing else than what is generally described as tip of the shoulder and tip of the elbow. Item 3 provides that if an amputation is beyond 8' from the tip of the shoulder and is within 4 down the tip of the elbow then the case would be covered by this item-loss of 70 %. earning capacity. In other words, though there might be some need for measurement in cases of amputation below the elbow joint, if it is above the elbow joint, there would be absolutely no` doubt of the same falling within item 3 though it might, in some cases, go into higher items 1 and 2 also which rather provide for more percentage of loss of earning capacity. The respon dent has not filed any appeal nor has he appeared so that it might have been whether more compensation could have been awarded to him under items I and/or 2. However, the amputation being above the elbow joint, in no case the matter would fall in-a lesser category than item 3 i.e. 70 % loss of the earning capacity. It is not the case of the appellant that the amputation and stump above the elbow joint was not seen by the Commissioner. On the other hand the respondent having appeared before the Commissioner it is legitimate to presume .that the stump would have been seen by the Commissioner. In any case, it is also in evidence recorded by the Commissioner (see P. W. 2 and P. W. 3) that the amputation was above the elbow-joint. In this view of the matter, the contention of the learned counsel is repelled.
9. No other point has been urged.
10. There is no justification for interference. This appeal fails and the same is dismissed but there shall be no order as to costs.
Appeal dismissed.