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First Appeal from Order No. 82 of 1972, decided on 21st May 1974.

(a) Workmen's Compensation Act (VIII of 1923)-

Ss. 2(g) & 4(1)(c)(ii)-Permanent partial disablement-Workman injured during course of employment permanently taken off duty as skilled workman after recovery-Case, held, one of permanent partial disablement.

The case of the workman fell within the definition of partial dis ablement contained in section 2(g) of the Act and because he was permanently taken off the duty as skilled machineman which he was capable of undertaking at the time of accident, therefore, it (the case) has rightly been found that of permanent partial disablement.

(b) Workmen's Compensation Act (VIII of 1923)-

S. 4(1)(c)(ii) & Scheds. I & IV read with Explanation-Assessment of loss of earning capacity--Injuries suffered by workman such as not specified in Sched. I and his case being one of permanent partial disablement, Commissioner had to give his own assessment of loss of earning capacity-Such loss of earning capacity to be comparably proportionate to standard laid down in case of permanent total dis ablement in Sched. IV-Injuries if more than one, Commissioner had discretion to assess loss equal to that of total disability.

As the injuries suffered by the respondent were not specified in Schedule I and his being a case of permanent partial disablement, the Com missioner was required under clause (c)(ii) of section 4(1) to give his own assessment of the loss of earning capacity which would be comparably proportionate to the standard laid down in case of permanent total disable ment in Schedule IV. If there were more than one injuries then under the Explanation, the Commissioner was further given wider discretion to make assessment equal to that of total disability.

(c) Workmen's Compensation Act (VIII of 1923)-

--S. 4(1)(c)(ii)-Assessment of loss of earning capacity-Doctor's opinion as to percentage of loss of earning capacity-Can be taken note of but cannot control Commissioner's decision-Commissioner's decision to be based on his own judgment qua loss of earning capacity.

The contention that unless a doctor gives the opinion as to the percent age of loss of earning capacity, the Commissioner is incompetent under the law himself to determine the same is not correct. The doctor's opinion in this behalf can no doubt be taken note of but it cannot control the decision of the Commissioner which is to be based on his own judgment qua the loss of earning capacity in proper exercise of his discretion.

Punjab Road Transport Corporation, Lahore v. Fateh Muhammad F. A. O. No. 128 of 1972 ref.

(d) Workmen's Compensation Act (VIII of 1923)-

Ss. 4(1)(c)(ii) do 2(g)-Assessment of loss of earning capacity-Inci dence of relevant employment after accident-To be put in juxta position to physical condition of workman for all relevant time Future service and promotion-Highly relevant in such context-Con tention that in assessment of loss of earning capacity future prospects of service or promotion are not relevant-Held, not tenable.

The contention was that in making the assessment of loss of earning capacity future prospects of service or promotion are not relevant.

Held : The contention is not tenable. The provision contained in section 2(g) itself postulates such consideration because it has to be judged whether the earning capacity of the workman was reduced on account of the accident, qua any employment in which he was engaged at the relevant time and/or other employment which he was capable of undertaking at that time. After the accident the incidence of relevant employment has to be put in juxtaposition to the physical condition of the workman for all relevant times. The future service and promotion would in this context be highly relevant.

S. Kamal Mustafa Bokhari, A. A.-G. (1) for Appellant.

Respondent in person.

Dates of hearing : 10th and 11th April 1974.

JUDGEMENT

Pakistan Western Railway has, by this appeal, challenged the award of compensation amounting to Rs. 4,200 to Abdul Majid respondent under the Workmen's Compensation Act, by order dated 3-4-72.

2. The respondent had suffered fracture of 4th to 6th ribs on left side in an accident arising out of and in the course of his employment with the appellant. He claimed to have been permanently disabled as after the accident he was not taken on the same job as skilled man but instead was put on light duty of sweeping and cleaning the cross-section. The appellant had taken the position that the respondent was never considered or declared by the medical authorities as having been permanently disabled nor that his earning capacity had deteriorated and it was on his persistent demand that he was recommended light duty. As, according to the appellant, there was no "permanent partial or total disablement", therefore, the question of giving compensation did not arise. Other technical objections were also raised whereupon the following issues were framed:

"(1) Whether the application is within time

(2) Whether the injury permanently disabled the petitioner and he was given a light job of sweeping and cleaning

(3) Whether compensation was paid, if so, to what amount

(4) To what amount of compensation the petitioner is entitled to

(5) Relief."

Issues Nos. 1 and 2 were decided in favour of the respondent. Issue No. 3 was decided against the appellant while on issues Nos. 4 and 5 it was held that the respondent was entitled to Rs. 4,200 as compensation because at the time that the case was decided the respondent's grade of pay would have been Rs. 100 to Rs. 150.

3. Learned Assistant Advocate-General has contended that there was no evidence before the learned Commissioner as to whether the respondent's case was of "permanent partial disablement". And if it was so what was the percentage. The case has been dealt with by the Commissioner under clause (c)(ii) of section 4(1) of the Workmen's Compensation Act which reads as follows:

"4(1) Subject to the provisions of this Act the amount of compensation shall be as follows namely:

6. Where permanent partial disablement results from the injury .......

(ii) In case of an injury 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;

Explanation.-Where more injuries than one are caused by the same accident, the amount of compensation payable under this head shall be aggregated but not so in any case as to exceed the amount which would have been payable if permanent total disablement had resulted from the injuries;".

Permanent partial disablement has been defined in section 2(g) which reads as follows:-

"2 (g) "Partial disablement" means, where the disablement is of a temporary nature, such disablement as reduces the earning capacity of a workman in any employment in which he was engaged at the time of the accident resulting in the disablement, and, where the disablement is of a permanent nature, such disablement as reduces his earning capa city in every employment which he was capable of undertaking at that time provided that every injury specified in Schedule I shall be deemed to result in permanent partial disablement:"

The injuries suffered by the respondent, it is admitted, were not included in Schedule I at the relevant time.

4. Three witnesses including the respondent himself were produced from the respondents side. Abdul Majid (respondent) as P. W. 1, asserted that when he was discharged from the hospital, he was incapacitated permanently and the doctor advised him for a light duty, initially he was posted as Daftri (light duty) and then as "sweeper to sweep the premises where the other work men worked". After he had made application for compensation, "the injuries sustained by him, began to give him trouble again and he was again admitted in the hospital". He was admitted yet another time i.e. for the third time in the hospital where he remained as indoor patient for ten days. He further asserted that "this permanent disablement could not restore him to his original job as skilled machineman. He had lost all chances of upgrading and promotion which he could have acquired in the normal course." Under cross-examination he showed ignorance whether the doctor had certified him as a permanently disabled person and had assessed any loss of earning capacity. He knew only this much that he was given light duty. P. Ws. 2 and 3 were examined to prove certain documents. One of them Exh. P. W. 1/2 is a confidential communication, sent by the Divisional Medical Officer wherein, after keeping the respondent under observation in the hospital, he indicated that "he may be permanently given the present job to sweep and clean the core section." About six months earlier, the Divisional Medical Officer had expressed the view that the respondent was fit for duty but he was to be kept under watch so as to ascertain whether he could do his duty well or not.

The final position was that the respondent was taken permanently off duty as a skilled machineman and according to the Divisional Medical Officer, he was assigned permanently the duty to sweep and clean the core section.

5. In view of the above facts as brought before the Commissioner, the case of the respondent fell within the definition of partial disablement) contained in section 2(g) of the Act and because he was permanently taken off the duty as skilled machineman which he was capable of undertaking at the) time of accident, therefore, it (the case) has rightly been found that of perma nent partial disablement.

6. As the injuries suffered by the respondent are not specified in Schedule I and his being a case of permanent partial disablement, the Commissioner was required under clause (c)(ii) of section 4(1) to give his own assessment of the loss of earning capacity which would be comparably proportionate to they standard laid down in case of permanent total disablement in Schedule IV. If l there are more than one injuries as in the present case, then under the Explanation, the Commissioner was further given wider discretion to make an assessment equal to that of total disability.

7. I do not agree with the learned counsel that unless a doctor gives the opinion as to the percentage of loss of earning capacity, the Commissioner is incompetent under the law himself to determine the same. The doctor's opinion in this behalf can no doubt be taken note of but it cannot control they decision of the Commissioner which is to be based on his own judgment qua the loss of earning capacity in proper exercise of his discretion. I have already discussed this point in Punjab Road Transport Corporation, Lahore v. Fateh Muhammad F. A. O. 128 of 1972. It was held therein that in absence of any statutory specification (like Schedule I), in a case falling under clause (c) (ii) of section 4(1), the Commissioner has to determine the proportionate percentage of loss in the earning capacity on the basis of his own experience and the circumstances in each case. In the present case, keeping in view the emoluments of the respondent as found by the learned Commissioner the loss of earning capacity could have been in the region of Rs. 4,800 being 60 % of what is provided in Schedule IV, for permanent total disablement.

8. The contention of the learned counsel that in making the assessment of loss of earning capacity future prospects of service or promotion are not relevant, is not tenable. The provision contained in section (2)(g) itself, postulates such consideration because it has to be judged whether the earning) capacity of the workman was reduced on account of the accident, qua any employment in which he was engaged at the relevant time and/or other) employment which he was capable of undertaking at that time. After the accident the incidence of relevant employment has to be put in juxtaposition to the physical condition of the workman for all relevant times. The future service and promotion would in this context be highly relevant. I, therefore, find no force in this contention either.

9. In view of the above discussion there is no force in this appeal and the same is dismissed, but there shall be no order as to costs.

S. A. H. Appeal dismissed.

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