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First Appeal from Order No. 67 Of 1963, decided on 1st December 1967.

S. 4 proviso (a)----Case of workmen for assessment of compensation falling under S. 4 (c) (ii)‑Workman receiving medical treatment at expense of employer and ire addition during period of convalescence given various sums amounting to Rs. 535.50‑Sukh payments cannot but be treated by way of compensation on principle underlying S. 70 of Contract Act, 1872‑‑Commissioner cannot reduce deduction, under proviso (a) to S. 4 of such amount from compensation awarded merely because such amount when paid was not expressed to have been paid by way of compensation‑Contract Act (IX of 1872), S. 70.

Pakistan Beverage Company v. Ahmad Shah P L D 1960 Kar. 331 ref.

S. 30 Appeal‑Commissionerdetermining nature of or incident attaching to payment made to injured workman during period of his convale scence‑Such determination raises a "substantial question of law" Appeal to High Court competent.

Pakistan Beverage Company v. Ahmad Shah P L D 1960 Kar. 331 rel.

Khalil‑ur‑Rahman Khan for Appellant

Sharif Hussain Bukhari for Respondent.

Date of hearing: 28th November 1967.

This judgment will dispose of F. A. Os. Nos. 67 and 68 of 1963 by Messrs Lever Brothers (Pak.) Ltd. Rahimyar Khan under section 30 of the Workmen's Compensation Act, 1923, the essential facts and the law points involved being the same in both the appeals.

2. There is no dispute as to the facts. Fazal Muhammad respondent in F. A. O. No. 67 receives Injuries arising out and in the course of his employment under the appellant resulting in his permanent partial disablement which was ultimately assessed at 20 per cent. The Administrative Civil Judge, Rahimyar Khan, as the Commissioner under the Act, vide order, dated 27th of April 1963, awarded to the respondent compensation in the sum of Rs. 1,680. The respondent received medical treatment at the expense of the appellant. The appellant also paid him various sums aggregating to Rs. 535.50 during the period of his treatment in the hospital. In proceedings before the Commissioner, the appellant claimed deduction under proviso (a) to section 4 of the Act in respect of Rs. 535.50 paid to the respondent as aforesaid from the amount of compensation awarded to him. The Commissioner refused the appellant's claim for deduction on the ground that it was not proved that aforesaid sum was paid to the respondent "as compensation" under proviso (a) to section 4 of the Act.

3. Nizam Din, respondent in F. A. O. 68, and another employee of the appellant was similarly injured and his permanent partial disablement was assessed at 30 per cent. for which he was awarded by the Commissioner, compensation in the sum of Rs. 2,940 by a separate order, dated 27th of April 1963. Nizam Din was also treated for his injuries at the expense of the appellant. During the period of his treat ment he also paid him Rs. 459.10. The appellant's claim for deduction of this sum from the amount of compensation was dis allowed by the Commissioner for the same reason as in the case of Fazal Muhammad.

4. Hence the appeals against the two orders of the Commissioner each dated 27th of April 1963, refusing the deduction of the amount paid to each respondent during the period of his convalescence.

5. Section 4 of the Act prescribes various scales of compensation as set out in the schedule to the Act to a workman for the injuries suffered by him in the course of his employment. In that behalf the case of the injured workman may fall under any of the following four categories, namely :‑

(a) where the injury results in the death of workman ;

(b) where the injury results in his permanent total disablement ;

(c) where the injury results in his permanent partial disable ment, and

(d) where the injury results in his temporary disablement whether total or partial.

6. It is common ground that the case of each respondent for the assessment of compensation fell under section 4‑C (ii) of the Act which prescribes compensation in the event of permanent partial disablement of workman resulting from injury not specified in Schedule 1 to the Act. The appellant claimed deduction of the amount paid to each respondent as aforesaid out of the compensation awarded, under proviso (a) to section 4 ibid which reads :‑

"Provided that:---

(a) there shall be deducted from any lump sum or half- monthly payments to which the workman is entitled the amount of any payment or allowance which the workman has received from the employer by way of compensation during the period of disablement prior to the receipt of such lump sum or of the first half‑monthly payment, as the case may be (except payments made to the worker during the period of his convalescence towards medical treatment).

(b) . . "

The above proviso came in for interpretation in Pakistan Beverage Company v. Ahmad Shah (P L D 1960 Kar. 331) in somewhat similar circumstances as in these cases, and it was held as follows :‑

"In those cases, where workmen are regularly paid half monthly salary during convalescence, such payment on the language of proviso (a) to section 4 must be deducted from the amount of compensation finally found to be payable to them. But at the same time the workmen are entitled to retain such amount which was paid to them for certain specific purpose or was meant for their treatment."

The above dictum fully covers the instant cases and the Commissioner was plainly in error its refusing deduction claimed in each case by the appellant, simply on the ground that the amount in question paid in each case is not expressed to be paid by way of compensation to the respondent daring the period of the convalescence. It is not disputed that the expenses of the respondents' treatment were paid by the appellant aliunde and no salary was admissible to them during the period of their disablement. Therefore, the payments in question cannot but be treated by way of compensation on the principle underlying section 70 of the Contract Act, 1872. It reads:‑--

"Where a person lawfully does anything for another person or delivers anything to him not intending to do so gratuitously and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered."

It is not the respondents' case that they were entitled to any wages, apart from free treatment during the period of their convalescence. Therefore the payments in questions must be regarded as compensation paid ad hoc to the respondents.

7. Learned counsel for the respondents, on the other hand raised two‑fold argument to support the Commissioner's orders under appeal refusing to allow the two deductions claimed by the appellant, namely :‑

(i) that the amount sought to be deducted by the appellant in each case was held by the learned Commissioner as not being paid as compensation to the respondents during the period of their disablement, and this being a question of facts cannot be agitated in appeal under section 30 of the Act, and

(ii) that the appellant was liable to pay half‑monthly payment to the respondents under section 4‑D of the Act and, therefore, the amount sought to be deducted cannot be treated as compensation apart from the appellant's liability to make half‑monthly payment.

8. In my opinion, there is no force in either of the above two contentions. As pointed out in the beginning there was no dispute before the learned Commissioner that the appellant had respectively paid Rs. 535.50 and Rs. 459.10 to Fazal Muhammad and Nizam Din over and above the expenses of their medical treatment. Therefore, it was not the factum of the payment, but the true nature of or incident attaching to payments which was in question before the learned Commissioner. Obviously, an answer to this question turned on a proper interpretation of the various provisions of the statute referred to above, and this in my opinion, is plainly a "substantial question of law" within the meaning of section 30 of the 1923 Act, therefore, the appeals are perfectly competent."

9. The second contention proceeds on a misconception of the provisions of paragraph 'D' of section 4. As pointed out already, it had throughout been a common ground between the parties that the respondents' case fell under para graph C(ii) of section 4 of the 1923 Act, and this necessarily excludes the application of paragraph 'D' ibid because various paragraphs of the section are mutually exclusive. Paragraph 'D' of section 4 relates to the case of "Temporary disablement whether total or partial" of an injured workman, while the two cases with which we are concerned, are the cases in which the two workmen suffered "permanent partial disablement" within the meaning of clause 'C'.

10. For the foregoing reasons, I accept the appeals and set aside the two orders of the learned Commissioner in so far as he refused to allow deduction of Rs. 535.50 and 459.10 paid by the appellant to Fazal Muhammad and Nizam Din, respectively, during the period of their convalescence, and order that the same shall be deducted from the amount of compensation payable to each of them. Parties are left to bear their own costs.

Appeals accepted.

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