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

---Ss. 10 & 30‑Compensation‑Payable only when partial disable ment reduces earning capacity of workman in any employment in which he was engaged at time of accident or when permanent disablement reduces earning capacity in every such employment which he was capable of undertaking at time of accident‑Workman sustaining a cut in upper lip and loss of two teeth‑Commissioner finding that workman had suffered facial disfigurement awarding Compensation to extent of 25% of earning capacity‑Order of Commissioner in appeal set aside by Labour Appellate Tribunal and case remanded for determining (1) whether disablement was partial (permanent or temporary) or total disability, (2) whether disability affected earning capacity in employment in which workman was engaged at time of accident and (3) if disablement was partial of permanent nature whether same had reduced his earning capacity in any employment which he was capable of undertaking at relevant time.

Muhammad Din Tanneries, Karachi v., Raj Wali Shah 1973 P L C 324 rel.

Shabbir Ahmad Awan for Appellants.

M. A. Hakeem for Respondent.

Date of hearing: 21st November, 1982.

The respondent, who was employed as coolly in the Railways Depart ment under the Train Examiner Incharge, Sukkur, sustained injuries on 17‑2‑1981, at about .10‑00 hours during and in the course of his work. The accident report, submitted by the concerned officer of the railways indicates that in consequence of the accident the respondent suffered loss of 2'teeth and also sustained a cut on the upper lip. The medical officer of the appellants, however, has certified the nature of the injuries of the respondent as simple despite the fact that in his letter, dated 26‑2‑1981, be has certified that. the disablement is likely to continue until 3‑3‑1981. Since the accident had occurred on 17‑2.1981 according to the above report of the doctor the disablement was likely to continue for about 14 days. The respondent claimed compensation for the above injuries from the railways administration, but as he was not successful in his efforts, he filed an application under section 10 of the Workmen's Compensation Act, 1923, before the learned Commissioner under the Workmen's Compensation Act.

2. It appears that the respondent did not examine any medical practitioner before the learned Commissioner in support of his claim. However, the learned Commissioner on the basis of the certificates issued by the Medical Officer of the Railways and the accident report. as well as personal observation of the respondent, which suggested to him that the respondent had suffered facial disfigurement on account of the injuries sustained by him has awarded the respondent compensation to the extent of 25% of his earning capacity.

3. Under the Workmen's Compensation Act, the employer is liable to pay compensation or half monthly payments for any partial or total disablement suffered by his workman during and in the course of the employment. The, terms "partial disablement" and "total disablement have been defined in the said Act as follows :

(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 capacity in every employment which he was capable of undertaking at the time provided that every injury specified in Schedule I shall be deemed to result in permanent partial disablement:"...,...

(1) total disablement' means such disablement, whether of a temporary or permanent nature, as incapacitates a workman for all work which he was capable of performing at the time of the accident resulting in such disablement:

Provided that permanent total disablement shall be deemed to result from the permanent total loss of sight of both eyes or from any combination of injuries specified in Schedule I where the aggregate percentage of the loss of earning capacity, as specified in that schedule against those injuries, amount to one hundred per cent."

4. It will be seen from the definition of "partial disablement" reproduced above that such disablement may be of temporary nature or permanent nature. However, in either case the disablement must be of a type which reduces the earning capacity of the workman. In the case of "partial disablement" which is of temporary nature, the disablement should reduce the earning capacity of the workman in any employment in which he was engaged at the time of accident, and in the case of disable ment of permanent nature the disablement should reduce his earning capacity in every employment which he was capable of undertaking at such time. In other words, compensation is payable under the Workmen's Compensation Act only in those cases where the disablement reduces the earning capacity of a workman. The learned Commissioner, Workmen's Compensation, however, has failed to examine or consider this aspect of the question altogether. No finding has been given by him whether there has been any "disablement" of the respondent and further whether such disablement is partial disablement, whether temporary or permanent, or total disablement, and most important whether the disablement had reduced or affected the earning capacity of the workman in his present employment, or in the case of partial disablement of permanent nature, it has affected his earning capacity in any employment which he was capable of undertaking at the relevant time. In the case reported as Muhammad Din Tanneries Karachi v. Raj Wali Shah (1973 P L C 324) a learned Single Judge of the Karachi High Court, faced with a similar situation in which the learned Commissioner had failed to determine the extent of the disability of the workman, to decide the issue whether the disability reduced the workman's earning capacity in any employment and to determine the quantum of compensation payable to the workman, remanded the case back to the learned Commissioner. Respectfully agreeing with the view taken by the learned Single Judge, I would, for similar reasons, remand the case to the learned Commissioner for determining : (1) whether the disability of the workman is partial disablement (temporary or permanent) or total disability ; (2) whether the disability had affected the earning capacity o the respondent in the employment in which he was engaged at the time o the accident resulting in the disablement ; and (3) if the disablement partial disablement of permanent nature, whether the disablement had reduced the earning capacity of the respondent in any employment which he was capable of undertaking at the relevant time. .The amount of compensation deposited by the appellants is ordered to be refunded.

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