KARACHI TRANSPORT CORPORATION, KARACHI Versus KAJEER KHAN

Respondent No. 1, Kajeer Khan, was employed by the petitioners as a workman. The respondent preferred a claim for Rs.16, 400 before the Commissioner for Workmen's Compensation and Authority under the Payment of Wages Act, East Division, Malir, claiming compensation on account of disability allegedly occurring due to an accident which took place on 13‑9‑1986

2. The application filed by the respondent was resisted by the petitioners. The said authority framed two issues viz. (1) Whether the application is maintainable and (2) Whether the applicant is entitled for the claim or part thereof.

3: Both the issues were thereafter decided in favour of the respondent and the petitioners were directed to deposit Rs.8,200 in the Court within 15 days for payment to the respondent.

4. Mr. Naraindas C. Motiani, learned counsel for the petitioners hay firstly, contended that the application filed by the said respondent was not maintainable in view of Standing Order 10‑B(4) and, secondly, his contention was that the order of the said Authority is not based upon any evidence.

5. So far as the first contention is concerned, it is necessary to reproduce Standing Order 10‑B which provides as follows:‑‑

"10‑B. Compulsory Group Insurance‑‑(1) The employer shall have all the permanent workmen employed by him insured against death and disability and death and injury arising out of contingencies not covered by the Workmen's Compensation Act, 1923 (VIII of 1923), or the Provincial Employees' Social Security Ordinance, 1965 (West Pakistan Ordinance No. X of 1965).

(2) The employer shall in .all cases be responsible for the payment of the amount of premia and for all administrative arrangement whether carried out by himself or through an insurance company.

(3) The amount for which each workman shall be insured shall not be less than the amount of compensation specified in Schedule IV to the Workmen's Compensation Act, 1923 (VIII of 1923).

(4)Where the employer fails to have a permanent workman employed by him insured in the manner laid down in clauses (1), (2) and (3) and such workman suffers death or injury rising out of contingencies mentioned in clause (i) the employer shall pay, in the case of death, to the heirs of such workman, or in the case of injury, to the workman, such sum of money as would have been payable by the insurance company had such workman been insured.

(5) All claims of a workman or his heirs for recovery of money under clause (4) shall be settled in the same manner as is provided for the determination and recovery of compensation under the Workmen's Compensation Act, 1923 (VII of 1923)

6. As is evident from Standing Order 10‑B, although clause (1) thereof makes it incumbent on the employer to insure permanent workmen employed by him against; (i) natural death and disability and (ii) death and injury arising out of contingencies not covered by Act VIII of 1923 or W.P. Ordinance No. X of 1965 but clause (4) of the Standing Order under which an application can be filed by a workman claiming compensation from the employer on account of his failure to insure the workmen as contemplated, by clause (1) of the said Standing Order, makes no reference to any disability suffered by the workman but the same only refers to death or injury which might have been suffered by the workman. The effect of the omission of the word "disability" from clause (4) of Standing Order 10‑B would be that although a claim can be preferred by the workman against the employer on account of death or injury occurring to him, no such claim can be preferred on account of any disability which might have been suffered by the workman. A similar question arose in C.P. No. S‑73 of 1988 and others (Karachi Transport Corporation v. Abdul Aziz and others) decided by me on 2‑2‑1992 and it was held in the said case as follows:‑

In other words, the word "disability" has been omitted from clause (4) under which claims were preferred by the petitioners against the respondent. Although it is possible that the omission of the word "disability" in clause (4) may be unintentional, but the Courts are hardly called upon to supply casus omissus left by the Legislature unless the omission is palpable and the word omitted clearly indicated by the context

Such does not appear to be the case in the present case. Reference in this regard may also be made to a decision of the Sindh Labour Appellate Tribunal wherein a similar view was taken. The case is reported in 1978 PLC 363 (M/s. Pakistan Tobacco Co. Ltd. v. Muhammad Siddique).

7. The upshot of the above discussion, therefore, is that the application filed by the respondent before the Commissioner for Workmen's Compensation Act was not maintainable.

8. The second contention of Mr. Naraindas C. Motiani, learned counsel for the petitioners also carries lot of force. It may be pointed out in this regard that the respondent No. 2 was examined by one Dr. Nayyer lqbal who certified his disability as 40%. However, the authority found that 40% disability said to have been sustained by the said respondent was on the higher side and, while discarding such evidence the said Authority itself went on to hold that the disability suffered by the workman was to the extent of 20%. There ostensibly appears to be no evidence in this regard on the basis of which such findings have been arrived at by the Authority. The certificate issued by the said doctor could either have been relied upon or rejected in toto but the findings of the Authority that the injury suffered by the said respondent was to the extent of 20%, are clearly erroneous as the same are not supported by any evidence on the point. Consequently, in my opinion, the impugned order is not sustainable even on the second ground urged by Mr. Naraindas C. Motiani.

9. In the result, I accept this petition by declaring the order passed by the Authority dated 2‑4‑1990 as without lawful authority and of no legal effect.

10. Before parting with this case, I would like to point out that I have had the advantage of hearing the arguments of only Mr. Naraindas C. Motiani as none has appeared on behalf of the respondent.

H.B.T./K‑317/K Petition accepted.