ANWAR MUNIR COAL CO. Versus MUHAMMAD IQBAL

In this appeal filed under section 30 of the Workmen's Compensation Act, an employer (the appellant) has called in question the grant of Rs. 1,100 as compensation to a workman (respondent No. 1).

2. The respondent No. I was employed as a miner in the Coal Mine of the appellant by the respondent No. 2, his contractor, when on 13-7-72 a part of the mine caved in. Stones fell on the workman who, apart from dis location of clavicle, suffered fracture of the right tibia bone. The workman remained admitted in hospital from 13th July to 2nd August 1972. Certifi cate (Exh. P/1 and P/2) were produced in evidence to show the extent of injury and damage. On the application submitted on proper form by the workman for compensation, the appellant raised various preliminary objec tions including that the respondent No. 1 did not fall under the definition of "workman" under the Act and also that respondent No. 2, who was the contractor, was responsible for the payment of compensation, if any. It needs to be mentioned that in the written statement there is absolutely no averment or assertion of any fact as to why the respondent No. 1 could not be treated as a workman. On the pleadings of the parties, following issues were framed:

Indemnify ,

Learned Commissioner, vide his order, dated 27-3-1973 decided all the issues in favour of the respondent No. 1. The issue with regard to liability to pay compensation was decided against the appellant and in favour of respon dent No. 2.

3. Learned counsel for the appellant has raised the following three contentions:

(i) That respondent No. 1 was not a workman because at no time within a year prior to the accident more than fifty persons were employed in the mine in question, that no explosives were ever used therein and that the depth of the mine was less than 20 ft. therefore relying on the proviso to clause 5 of Schedule II of the Act, it was contended that this being a case of mine, respondent No. 1 would not fall within the definition of a workman;

(ii) that the production of the medical certificate by itself was not enough to prove the fracture of leg and that being so, there was no justification for the learned Commissioner to have fixed the percentage of loss in earning capacity at 10 %; and

(iii) that respondent No. 2 being the contractor was the "employer" as defined in section 3, therefore, under subsection (2) of section 12 he alone was responsible for payment of the compensation at least by way of indemnification.

4. The learned Commissioner has accepted the statement of respondent No. 1 as correct with regard to the height of the hillock under which the mine in question was being worked and in this behalf he rejected the statement made by Irsbad Iqbal, Mining Supervisor, examined as R. W. 1 by the appellant. No doubt the definition of workman in section 2(1)(n) for the purpose of the present case has to be read with item (v) and proviso there under of Schedule If; but it should not be ignored that the various items in the Schedule cannot be treated as having restricted the definition of workman as contained in the governing provision, namely, section 2(1)(n). The pur view for the various items under Schedule II is as follows:-

"The following persons are workmen within the meaning of section 2(l)(n) and subject to provisions of that section, that is to say, any person who is ...."

It gives significance of, and importance to, the main definition contained in section 2 (1)(n). Thus it would be legitimate to presume that various items under Schedule II do not restrict and in fact, in many cases, enlarge the definition as contained in section 2 of the Act. Keeping in view this principle underlying the definition of workman in this special enactment, it will have to be seen whether any interpretation of proviso to clause (v) which restricts the definition can be accepted as in accord with the spirit thereof (the enactment). In case of conflict or doubt that interpretation would have to be accepted which enlarges the definition. Clause (v) of Schedule II reads as follows:-

"(v) employed, in any mine as defined in clause (f)' of section 3 of the Mines Act, 1923 (IV of 1923), in any mining operation, or in any kind of work, other than clerical work, incidental to or connected with any mining operation or with the mineral obtained, or in any kind of work whatsoever below ground:

' Provided that any excavation in which on no day of the preceding twelve months more than fifty persons have been employed or explosives have been used and whose depth from its highest to its, lowest point does not exceed twenty feet, shall be deemed not to be" a mine for the purpose of this clause;"

Subsection (1) of section 3 of the Mines Act, 1923 reads as follows:-

" `mine' means any excavation where any operation for the purpose of searching for or obtaining minerals has been or is being carried on and includes all works, machinery, tramways and sidings, whether above or below ground, in or adjacent to or belonging to a mine:

Provided that it shall not include any part of such premises on which a, manufacturing process is being carried on unless such process is a process for coke making or the dressing of minerals;".

It would thus appear that the proviso to clause (v) is not only a rider to the definition of workman but also for the purpose of Workmen's Compen sation Act operates as a further condition on a definition of a mine as con tained in the Mines Act. It is in evidence that there is no question of explosives being used in this coal mine. The use of explosives, therefore, in the context of the present case is out of question. With regard to the condi tion of more than fifty persons having worked on the "excavation" (this word has been used in the proviso and the use of the word "mine" has been avoided therein) it needs to be observed that no factual assertion in this behalf was made by the appellant in his written statement. In this context, it would be a question of fact whether or not fifty persons were employed at any time during the relevant period. Unless a question is raised in this behalf by the employer in his written statement, keeping in view the principle with regard to the interpretation of the provisions relating to definition of `workman', nothing would be presumed against him (the workman); ands because the appellant failed to make any assertion in this behalf, therefore, it will have to be assumed that the respondent No. 1 has had not sufficient notice opportunity of proving the facts about the number of persons employ ed at the "excavation". However, during the arguments, it was asserted o behalf of the respondent No. 1 that the appellant has two mines at the "excavation" in question and when combined together, all the persons in cluding miners and other workmen working at this combined mines-excava tion would come to much more than fifty. This assertion finds support from the statement of the contractor as R. W.

2. He categorically stated that sometimes 8-at others 10-at yet other times 20 and occasionally more per sons are employed. The possibility therefore cannot be excluded that at the excavation in question more than fifty persons might have been employed during the year preceding the accident. As the appellant did not take any specific factual plea in the written statement, therefore, I do not consider it necessary to direct any further enquiry in this behalf.

The only other question to be resolved is with regard to the meaning of depth" as used in the proviso. The Mining Superviser stated that from the `mine mouth' to the `working face' the maximum depth is 12 ft. In cross-examination, he admitted that above the excavation there are hillocks with height ranging up to 400 ft. Respondent No. 1 has given a vivid descrip tion of the length of the mine. According to him, the place of accident is about 100 ft. from the mine mouth while it is 40 ft. from the working face. Thus the total length of the mine shaft/tunnel would be about 140 ft. This would show that even if at places the vertical depth is 12 ft., the inward depth in the meaning of length up to the working face is about 140 ft. It is an admitted position that the hillock above the mine is more than 200 ft. and goes at places to 400 ft. In the context of a coal mine, therefore, it does not stand to reason that only the vertical depth (from top down) would b~ taken so as to bring a case under the proviso-in that context the depth would also include `from surface inward' or 'from front to back' in the horizontal length of the mine tunnel. If, however, there is no hillock above the ground level and if it is not possible to say that the mine goes deep into the earth in either way, the case might be different. In the present case it has been established that the mine goes deep `inwards' the hillock for about 140 ft. and at) the place of the accident as also at the working face the depth vertical down from the top of the hillock would be more than 200 ft. The vertical depth from the mine mouth measured only vertically downwards would not in the context be in accord with the principle underlying the definition as pointed, out above. In the light of the above discussion, I hold that the decision of the learned Commissioner on issue No. 1 is unexceptionable. Contention No. (1) raised by the learned counsel is repelled.

5. No doubt examination of the doctor provides an easy guidance to the Court when the question raised is a complicated one and needs an expert opinion. In the present case, however, during the evidence it was not seriously contested that the right leg (tibia bone) of the respondent No. I was fractured. He made a statement on oath in this behalf and it was not such a complicated medical issue so as to require an expert opinion to resolve as to whether the tibia bone had been fractured or not. The fracture of the tibia bone can be felt by the victim as also by even a layman. When a statement is made on oath in this behalf and the same has been accepted by the Court, there is no reason for this Court to interference with the finding of fact simply because of a technical objection, namely, that the doctor was not examined. Learned counsel did not dispute the proposition that under the Workmen's Compensation Act, strictly speaking, there is no legal requirement to examine a doctor except that when the Commissioner does examine a medical witness, he would have to record his statement in full. Learned counsel admitted that the case of the appellant fell within section 4(2)(c)(ii) which provides that where permanent partial disablement results from an Jury not specified in Schedule I such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity permanently caused by the injury, would be payable. In this case, the learned Commissioner keeping in view the fact that the fracture is of tibia bone and that also of the right leg, if agreeing with the suggestion contained the certificate issued by a doctor, fixed the loss of earning capacity at 10 % it can neither be treated as illegal nor against any principle There is no law that the learned Commissioner is debarred from using his own experience and knowledge while fixing the percentage when it his been left by the law to his discretion. As no illegality has been committed nor the decision in this behalf is unjust or improper, therefore, I do not find any force in the second contention raised by the learned counsel either.

6. With regard to the last contention, the finding of the learned Commis sioner is that on account of clause 6 of the agreement between the appellant and respondent No. 1, the liability to pay compensation for an accident was accepted by the appellant and not by his contractor (respondent No. 2). This agreement is not against any law. In fact, it is in accord with subsection (1) of section 12 of the Act which inter alia provides that even if the principal con tracts with any other person i e., the contractor, for the execution of any work, relating to this trade or business, he (the principal) shall be liable to pay to any workman, employed in the execution of the work, any compensation which he would have been liable to pay if that workman had been directly employed by him and "where compensation is claimed from the principal, this Act shall apply as if references to principal were substituted for references to the employer except that the amount of compensation shall be calculated wit reference to the wages of the workman under the employer by whom he is~ immediately employed". No doubt, the immediate employer in this case was respondent No. 2 the contractor, but the above referred provision as also the agreement are a complete answer to the claim of the appellant that the con tractor (and not he (the principal) was responsible for the payment of the compensation. With regard to the reliance of the learned counsel on sub section (2) of section 12, suffices it to say that the agreement (Exh. R. W. 2/1) which was admittedly executed between the parties does not provide for any indemnification of the appellant by respondent No. 2 and the subsequent agreements including Exh. R-1/4 has not been accepted by the learned Com missioner for good reasons as binding on respondent No. 2. This last mentioned aspect is a finding of fact and cannot otherwise be interfered with in an appeal under section 30 of the Act.

7. Before parting with this case, it needs to be noted that the learned counsel for the appellant mentioned the following cases to show that the examination of a doctor is always necessary in a case dealt under the Workmen's Compensation Act:-

Appeal of Swammy East Plant Mechanical Department v. Tata Iron and Steel Co. Ltd. (A I R 1933 Pat. 532);

Ali Akbar v. Java Bengal Lines (A I R 1937 Cal. 697);

Cheralodiyil Usankutty v. Kunhipennu (A I R 1943 Mad. 608).

I have discussed this question in some other cases including P. W. R. v. Abdul Majid (F. A. O. No. 82/72, decided on 21-5-74) ; Punjab Road Transport Corporation, Lahore v. Fateh Mohammad (F. A. O. No. 128/72, decided on 22-5-74) and Mohabbat Dal Factory v. Mohammad Sarwar (F. A. O. 114/73, decided on 10-6-74). It, in reality, depends upon the circumstances of each case as to whether the Court requires the assistance of medical expert in so far as the opinion about the injury or the percentage of loss in earning capacity is concerned. I have already discussed the question in so far as the circumstances of the present case are concerned. If the cases cited by the learned counsel in any way are under stood/interpreted laid down that without a doctor furnishing expert opinion no case can be decided under the Workmen's Compensation Act in so far as the nature, location and extent of injury or the extent of loss of earning capacity is concerned, then I do not subscribe to this too general and wide proposition and, with respect, would dissent from such a view.

8. None of the contentions raised by the learned counsel for the appel lant succeeds. This appeal, therefore, is dismissed. There shall be no order as to costs.

S. A. H. Appeal dismissed