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Appeal No. WCK‑11 of 1982, decided on 3rd April, 1983.

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

--‑‑S. 10 (1), proviso (b)‑Notice of claim for compensation‑Fore‑man of employer establishment having knowledge of accident in which workman involved and giving letter for his treatment on very day of occurrence‑Want of notice defect or irregularity in notice, in circumstances, held, would not affect claim for compensation.

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

--‑‑Ss. 11 (2) & 30‑Suspension of right of compensation‑Work man failing to present himself before doctor of employer establish ment despite direction‑Subsequently during cross‑examination before Commissioner stating that he was prepared to get himself examined by said Doctor‑Commissioner refusing to suspend claim on ground that workman was willing to be examined by said Doctor‑Order of Commissioner not challenged by employer‑Plea that payment of compensation should have been suspended during period for which workman failed to present himself before said Doctor, in circumstances, held, could not be considered in appeal,

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

--‑‑Ss. 2 (1) (g), 4, 10 & 30‑Compensation‑Payable either for total disablement or for partial disablement‑Both "total" or "partial" disablements may either be permanent or temporary- Permanent partial disablement‑Essential requirement‑Reduction of earning capacity in every employment which workman was capable of undertaking at time of accident resulting in disablement- Percentage of loss of earning capacity to be ascertained by Com missioner‑Commissioner duty bound to ascertain as to what extent such disability reduced earning capacity of workman in every such employment which he was capable of undertaking at time of accident‑‑Injury not specified in ‑Sched. I ‑Percentage of loss of earning capacity, held, can be ascertained only with reference to all circumstances of case‑Dock labourer sustaining injury on back -Remaining under treatment of doctor for 28 days and that doctor reporting thereafter , that workman was fit for duty‑Subsequently after about two months workman obtaining certificate of 23% permanent partial disability from another doctor and filing claim for compensation‑Commissioner, at instance of employer referring workmen to senior expert Government doctor who assessing permanent partial disability @ 5% of earning capacity‑Such expert doctor however not examined before Commissioner nor doctor who declared workman fit for 'duty so examined‑Commissioner taking note of fact that workman being labourer was required to use his limbs to earn his livelihood as such any limitation in use of limbs or body would reduce his earning capacity, held, that he was suffering from permanent partial disablement‑Appeal against order of Commissioner stressed on ground that according to certificate of first doctor workman was fit to perform his duty hence was not entitled to compensation ‑Expert doctor certifying permanent partial disablement a@ 5 /o of earning capacity examined before Appellate Tribunal at appeal stage stating that his estimate of loss of earning capacity was based on physical examination in light of his experience‑Such evidence indicative that certificate of fitness for duty by first doctor was not justified‑Certificate of Expert doctor not based on any tangible data or demonstrable grounds though stating that effect of injury was permanent but same, held, does not mean that workman had incurred permanent partial disablement" because it could not be said that type of disability was of such nature as to affect earning capacity of workman in every type of work which he was capable of undertaking at time of accident particularly to view of certificate of doctor suggesting that workman was fit to perform some type of manual work though not necessarily of dock labourer‑Workman, in circumstances, held, was not suffering from permanent partial disability but from temporary partial disablement‑Order of Commissioner accordingly modified -Compensation (a3 5% of earning capacity with costs including court fees, medical examination fee expenses for calling witnesses and pleader's fee allowed by Appellate Tribunal.

Mohammad Zarafat v. Shaikh Mohammad Amin 1982 P L C 120 and Volkert (Pakistan) Limited v. Mohammad N L R 1978 Lab. 360 ref.

Divisional Superintendent, Pakistan Western Railway, Quetta v. Mian Mohammad 1972 P L C 18 ; Ahmed Brothers v. Mahmoodul Ha"an Khan P L D 1965 Kar. 83 ; Upper Doab Sugar Mills Ltd. v. Daulat ‑Ram A I R 1936 All. 493 ; Governor‑General‑in‑Council v. Dewa Khanno A 1 R 1947 Sind 814 ; Canara Public Conveyance Co. Ltd. v. Unman Khan 1967 P L C 224 ; A.K.M. Shamsuzzaman Khan v. Chairman, East Pakistan Road Transport Corporation and another 1971 P L C 89 ; M/s. S. Mohammad Din Tanneries v. Rajwali Shah 1973 P L C 324 ; Punjab Road Transport Corporation v. Fateh Mohammed P L D 1975 Lab. 275 ; Anwar Munir v. Mohammad Iqbal P L D 1975 Lab. 367 and Hilal Trading Co. v. Rasool Bux 1975 P L C 709 rel.

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

‑‑Ss. 2 (1) (n) tic 10‑"Workman"‑Casual worker not ousted from definition of "workman"‑Casual employment for purpose different from employer's trade or business only would exclude an employee from definition of workman‑Contention that injured casual dock labourer being a casual worker in business of employer was not entitled to compensation‑Rejected.

East Pakistan Water of Power Development Authority v. Mohar Ali

Saiyal 1970 P L C 747 rel.

Haroon Ishaque Jangda for Appellants.

A.M.T. De Cruz for Respondent.

Date of hearing : 24th March, 1983

DECISION

This appeal is directed against the decision of the learned Com missioner for Workmen's Compensation, Central Division, Karachi, awarding a sum of Rs. 4,830 as compensation to the respondent on account of the permanent partial disability incurred by him in consequence of an injury sustained by him while in the employment of the appellants, plus an amount of Rs. 100 towards costs.

2: The facts of this case, shortly stated, are that the appellants are a private limited company doing business as Shipping Agents, Charterers, Stevedores and Literage Contractors and for these purposes engage dock labour. The respondent is a dock worker. On 6th October, 1979, while doing work of unloading on a ship for the appellants he sustained an injury on his back. He was referred by the foreman of the appellants to the company's doctor, Dr. Amanat Ali Mohsin. The respondent, however, did not get himself treated or examined by the said doctor but was treated by Dr. S. M. lllyas who issued a certificate to the effect that he had treated the respondent for the injury from 7th October, 1979 up to 30th October, 1979. Subsequently, on 25th December, 1979, the respondent obtained an "A" form from another doctor, Dr. A. K. Memon, certifying that the respondent bad incurred 23 /o permanent partial disability and on the basis of the said certificate he filed a claim for compensation of an amount of Rs. 4,830 plus costs. Before preferring the said claim the respondent had served a legal notice upon the appellants for the said amount, with which notice original certificate issued by Dr. S. M. Illyas was enclosed, offering to get himself examined by any medical practitioner of the appellant's choice. The appellants, in their reply to the said notice, repudiated the claim of the respondent but nevertheless required the respondent to present himself before Dr. Amanat Ali Mohsin, at his clinic at Tayabji Building for examination and report. It appears that the respondent did not attend before Dr. Amanat Ali Mohsin. However, during cross‑examination before the learned Commissioner, Workmen's Compensation, he stated that he. was prepared to get himself examined by the said doctor. He was accordingly referred to Dr. Amanat Ali Mohsin by the learned Com missioner, but Dr. Amanat Ali Mohsin did not issue any form in respect of him and wrote to the Commissioner regretting his inability to do so on account of what he termed as the non‑co‑operative attitude of the respondent and suggested that the respondent be examined by another doctor. The learned Commissioner thereupon referred the respondent to Dr. S. A. Hussaini, at the instance of the appellants. Dr. Hussaini, who is Medical Doctor and Head of the Department of Surgery of Liaquat National Hospital, assessed they permanent partial disability of the respondent at 5% of his earning capacity. He, however, could not be examined by the learned Commissioner, as he was out of the country when summonses were issued for his attendance and recording of evidence. As the evidence of this doctor was considered necessary for deciding the appeal he was examined by this Tribunal.

2‑A. I have heard Mr. Haroon Ishaque, the learned counsel for the appellants, and Mr. A.M.T. De Cruz, who appeared. for the respondent workman. Mr. Haroon Ishaque assailed the decision of the learned Commissioner on the following grounds:

(i) No notice of the. accident was given'' by the respondent to the appellants as required . by the section 10 of the Workmen's Compensation Act, 1923, and hence the claim of the respondent for compensation was not entertainable by the learned Commissioner.

(ii) Since the respondent had failed to produce himself for medical examination before the‑ doctor of the appellants, though specifically required to do so, the payment of compensation should have been suspended under subsection (2) of section 11 of the said Act during the whole of the period for which the respondent refused or failed to present himself before the doctor of the appellants.

(iii) The respondent is not entitled to compensation as according J to the certificate of Dr. S. M. Illyas he was fit to perform his duties with effect from 1st November, 1979.

3. I will proceed to deal with each of the above contentions seriatim.

4. Now so far as the first contention of the learned counsel of the appellant is concerned, although subsection (1) of section 10 of the Workmen's Compensation Act contemplates that notice of the accident in respect of which a claim is preferred has to be given to the employer as soon as practicable after the occurrence of the accident, clause (b) of the second proviso to the said subsection provides that the want of or any defect or irregularity in the notice shall not be a bar to the entertainment of a claim if the employer or any person responsible to the employer for the Management of any branch of the trade or business in which the injured workman was employed had knowledge of the accident from any other source at about the time when it occurred. In the instant case, the foreman of the appellants had, on the very day of the accident in which the respondent was involved, given the respon dent a letter for treatment by the company's doctor, Dr. Amanat Ali Mohsin. This letter not only bears the full name of the respondent but also his card number. Since the foreman of the appellants had knowledge of the accident on the very day that it occurred the case squarely falls within the provisions of clause (b) of the second proviso to subsection (1) of section 10 of the Act and want of notice or any defect or irregularity in the notice (the notice was given on 27th December, 1979), would not affect the claim of the respondent for compensation.

5. I will now proceed to examine the second contention of Mr. Haroon Ishaque that the payment of compensation to the respondent should have been suspended as he did not present himself for examination before the doctor of the appellants though specifically directed to do so. In the legal notice, dated 27th December, 1979, the respondent had offered to have himself examined by the doctor of the appellants but when he was required by the latter's letter, dated 2nd January, 1980, to present himself before Dr. Amanat Ali Mohsin, he failed to do so. His reason for not being able to do so was that he could not trace him. The full address of the clinic of Dr. Amanat Ali is given in the letter of the appellants, dated 2nd January, 1980, and as this is located in a prominent building and place 1 am unable to believe that the respon dent could not locate his clinic. However, as later the respondent showed his willingness to be examined by Dr. Amanat Ali Mohsin and did in fact report to him but the said doctor refused to issue in respect of him an "A" form on the plea that the respondent's attitude. was, accord ing to him, non‑co‑operative and further as the learned Commissioner by his order, dated 2nd June, 1.980, had refused to suspend the claim of the respondent for compensation on the ground that the respondent was now ready and willing to get himself examined by Dr. Amanat Ali' Mohsin, and this order was not challenged, the contention of Mr. B Haroon Ishaque, in my opinion, has no substance and cannot be considered at this stage.

6. It next falls to be considered whether the respondent is entitled to any compensation, and if so of what amount. The Workmen's Compensation Act provides for the payment of compensation by the employer in case of either total disablement" and "partial disablement", as defined in the said Act, incurred by any of his workmen. Both "total C disablement" and "partial disablement" may be either permanent or temporary. n the instant case, the learned Commissioner has awarded compensation to the respondent for permanent partial disablement. "Partial disablement" has been defined in the said Act as follows :

"(g) "partial disablement" means, where the disablement is of a tem. porary 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 that time ; provided that every injury specified in Schedule I shall be deemed to result in permanent, partial disablement."

It will be seen that the essential requirement or feature of permanent partial disablement is that it reduces the earning capacity of the workmen in every employment which he was capable of undertaking at the time of the accident resulting in the disablement. It has, therefore, to be D seen whether the earning capacity of the respondent has been reduced in every employment which he was capable of undertaking at the time he met with the accident resulting in the disablement, and if so, what is the percentage of the loss of earning capacity on account of such dis ablement. The difficulty in the instant case in determining these two issues has been enhanced by the fact that three doctors had examined the respondent and each of them has given a different assessment of the loss of the earning capacity of the respondent. As already indicated, the first doctor who examined the respondent was Dr. Illyas, whose certificate appears as Exh. A‑2 on the record of the learned Commissioner. The doctor himself was not examined but from his certificate it appears that the respondent was under his treatment from 7th to 30^th of October, 1979, and that at the time that the certificate was issued on 1st November, 1979, the respondent, according to him, was fit to resume his duties. It was urged by Mr. Haroon Ishaque, the learned counsel for the appellant company, that since according to the certificate of Dr. Illyas, the respondent was fit to resume his duties with effect from 1st November, 1979, the disablement of the respondent, if any, was of a temporary nature‑ from 7th October to 30th October, 1979 and was not a per manent partial disablement as has been held by the learned Commissioner. It was further submitted by Mr. Haroon Ishaque that since the respon dent had supressed evidence by not examining Dr. Illyas, it should be assumed that the evidence of Dr. Illyas would have been unfavourable to him. It was held by the Punjab Labour Appellate Tribunal in the case reported as Muhammad Zaraat v. Shaikh Muhammad Amin (1982 P L C 120) relying upon the decision by my learned predecessor in the case of Volkert Pakistan Limited v. Muhammad (N L R 1978 Labour 360) that since the doctor who had examined Muhammad Zaraat and issued certificate regarding his disablement was not examined as a witness his certificate was not proved nor the employer had opportunity of cross‑examining the doctor upon his opinion. The case of Muhammad Zaraat was, accord ingly, remanded to the learned Commissioner with the direction that the evidence of the doctor who had examined Mohammad Zaraat and issued certificate regarding his disablement should be recorded and the case should be decided in the light of his testimony. It would appear that neither in the case of Muhammad Zaraat nor in the case of Volkert (Pakistan) Limited the decision of the Sind & Baluchistan High Court re ported as the Divisional Superintendent, Pakistan Western Railways, Quetta v. Mian Muhammad (1972 P L C 18), was noticed or cited before the learned Appellate Tribunal. It was held in the case of Mian Muhammad relying on the observations of Farooqi, J., in the case of Ahmed Brothers v. Mahmoodul Hassan Khan (P L D 1965 Kar.83) that the Evidence Act does not apply in terms to the proceedings under the Workmen's Compensation Act which are of summary nature. In that case, one of the contentions raised was that the workman was not entitled to a sum of Rs. 788 which he had claimed for expenses incurred by him at the Combined Military Hospital, Quetta, as the workman did not examine the hospital authorities to prove the expenses paid by him. Repelling the contention of the learned counsel for the Railways that there was no evidence in support of the claim of the workman that he bad incurred the said expenses at the Combined Military Hospital, Dorab Patel, J.. who decided the case, observed that merely because the workman did not summon the hospital authorities to prove his payment in the manner required in a regular suit, it did not mean that the Commissioner erred in accepting his claim. The learned Judge went on to observe that the only question that was to be determined was whether there was evidence in support of the Commissioner's finding and in this behalf he referred to the evidence of the respondent to the effect that he was compelled to go to the Combined Military Hospital for treatment and that he had paid Rs. 788 as expenses to the said hospital which had issued a certificate of payment. In the instant case, there is the certificate of Dr. Illyas himself which indicates that the respondent was treated by him from 7th to the 30th of October, 1979. The certificate of Dr. illyas, however, was not relied upon by the learned Commissioner on account of the evidence of Dr. A. K. Memon and the certificate of Dr. S. A. Hussaini. The latter, doctor had examined the respondent at the instance of the appellant company. Dr. A. K. Memon had issued an "A" form to the effect that the respondent had incurred permanent partial disability affecting 23% of his earning capacity. He supported his certificate by giving evidence before the learned Commissioner. In his evidence he stated that he had examined the respondent on 25th December, 1979 and found that the respondent was injured in the back resulting in limitation of movement and this caused permanent partial diability to the extent of 23%. The doctor was cross‑examined at some length but except that be has admitted that it was neither a case of fracture nor of bleeding nothing more of importance was elicited from him. Dr. Hussaini, who had examined the respondent on 7th July, 1980, had also opined that the respondent had incurred a permanent partial disability but was assessed the loss of his earning capacity at 5 ,/o against 23% assessed by Dr. A. K. Memon. Since Dr. Hussaini was not examined by the learned Commissioner on account of hiss non availability he was summoned and examined before this Tribunal. He examined the respondent is Court and testified that even now the respondent was having the effects of his injury and that he had some inconvenience and the movements of parts of his body were somewhat restricted. Dr. Hussaini is a highly qualified doctor, being M.B.B.S. F.R.C.S. and F.I.C.S. He is Medical Director and Head of Depart ment of Surgery at the Liaquat National Hospital. He testified that he had examined several cases of back injuries. He stated that the estimate of incapacity of the respondent was based on the physical examination of the respondent in the light of his experience and studies. In view of the evidence of Dr. A. K. Memon and Dr. Hussaini, it is clear that the certificate of Dr. Ilivas that he was fit for work was not justified. If after almost four years of the accident the after‑effect thereof are still quite apparent and the respondent not only is suffering from some inconvenience in the movement of his limbs but also is having the movement of some parts of his body somewhat restricted, obviously, he could not be considered fit to perform with effect from 1st November, 1979 the duties of a dock‑labourer which involve the loading and unloading of heavy packages and weighty articles.

7. Although, the effect of the injury sustained by the respondent appears to be permanent, as testified by Dr, Hussaini and Dr. Memon, this does not mean that the respondent has incurred permanent partial disablement. ‑ As already indicated "partial disablement would be permanent only if such disablement reduces the earning capacity of a workman in every employment which he was capable of undertaking at the time of the accident resulting in disablement. It cannot be said that the type of the disability which has been certified either by Dr. Memon or Dr. Hussaini is of such a nature as to affect the earning capacity of the respondent in every type of work which he was capable of undertaking at the time of the accident. In the case of Upper Doab Sugar Mills Ltd. v. Daulat Ram (A I R 1936 All.493), it was held that in assessing compensation in cases of permanent partial disable ment what that Court has got to see is the fact as to whether the earning capacity of the workman has been reduced in every employ ment which he was capable of undertaking at the time of the accident and not merely the particular employment in which he was engaged at the time of the accident resulting in disablement. In the above reported case, it was found that the respondent, who was a blacksmith fitter, had lost the right index and middle fingers. The certificate given by the Civil Surgeon was to the effect that the respondent's right hand had become permanently disabled and he was incapable of performing the duties of blacksmith fitter with that hand. This opinion was accepted by the Commissioner. The Allahabad High Curt, how ever, remanded the case to the Commissioner for a finding whether the respondent had been incapacitated from undertaking any other employ ment and whether in that other employment the rest of the hand namely the thumb and the other two fingers could be utilized.

8. In the case of Governor‑General‑in‑Council v. Dewa Khanno (A I R 1947 Sind 814), a Division Bench of the Sind Chief Court observed that where the injury to the workman had resulted in permanent disablement, it is the duty of the Commissioner to assertain to what extent such disability has reduced the workman's earning capacity in every employment which he was capable at the time of the accident. In M. D. that case, the Division Bench accepted the evidence of Dr. Wrench, a from London, that the injured workman had completely lost the use of his left arm, but since the Commissioner had failed to ascertain to what extent such disability had reduced the workman's earning capacity in every employment which he was capable of undertaking at the time of the accident, it remanded the case to the Commissioner with a direction to call evidence in terms of clause (g) of section 2 of the Act. 9. The next case to which I would refer is also from, the Indian jurisdiction, and is reported as Canara Public Conveyance Co. Ltd. v. Usman, Khan (1967 P L C 224). In that case a Division Bench of the Mysore High Court con sidered the meaning of the terms "partial disablement" and "total disablement" and observed that the words "provided that every injury specified in Schedule I shall be deemed to result in permanent partial disablement" is in the definition of "partial disablement" in section 2 (i) g) of the act do not mean that Schedule I is a statutory catalogue of injuries producing only permanent partial disablement and nothing more serious than that, but that it only means that to sustain a plea of permanent partial disablement it is enough to prove one of the injuries in Schedule I and if there was no evidence, except that there was an injury specified in Schedule 1, the conclusion that should be reached is that there was only permanent partial disablement.

10. The decision of the Dacca High Court in the case of A. K. M. Shamsuzzaman Khan v. Chairman, East Pakistan Road Transport Corpora tion and another (1971 P L C 89) is important as it examines the scope and the meaning of the words "as incapacitates a workman for all work which he was capable of performing at the time of the accident" appearing in section 2 (1) (g) of the Act. It was held that the said words clearly relate to only those kinds of work which the workman was capable of perform ing in relation to his earning of livelihood and do not mean a category broader than that. In that case it was found by the High Court that the medical evidence was unequivocal to the effect that the workman was disabled from undertaking any active physical work and since the workman was acquainted with and capable of performing, prior to his sustaining injury, only active physical work, the reduction of the earning capacity of the workman was total and as the disabi lity sustained by the workman was permanent, it was a case .of permanent total disablement.

11. The next case to which I would refer is again a decision of the Karachi High Court in the case reported as Messrs S. Muhammad Din Tannies v. Rajwali Shah (1973 P L C 324). That was a case where the workman was certified to have suffered permanent partial disablement. It was observed that the Commissioner was. required (i) to determine extent of disability, (ii) to determine whether the disability reduced the workman's earning capacity in any employment and (iii) to determine quantum of compensation payable to the workman, it was held that since the Commissioner had failed to determine the material point whether the disability and reduced his earning capacity in all types of employment he was capable of undertaking at the time he suffered the injury, the case was remanded to the Commissioner for determining all ‑ the points after taking evidence.

12. In the case of Punjab Road Transport Corporation v. Fateh Muhammad (P L D 1975 Lah.275), Zullah, J. observed that the Commissioner,' in assessing compensation under the Workmen's Compensation Act, whether on account of total disability or partial disability may use his practical notions/conventions including experience as aids for finding out reasonableness of compensation. The same learned Judge in the case reported as Anwar Munir v: Muhammad Iqbal (P L D 1975 Lah.367) observed that the fixation of per centage of loss in earning capacity was discretionary with the Commissioner and he may use his experience and knowledge while fixing percentage. The learned Judge repelled the proposition that without a doctor furnish ing expert opinion no case can be decided insofar as nature, location, extent of injury or extent of loss of earning capacity is concerned anti observed that the proportion was too general to be accepted.

13. I would in the end refer to two decisions of my learned predecessor. The first decision is reported as Hilal Trading Co, v. Rasool Bux (1975 P L C 709) In that case it was held that according to law it is the duty of the Commissioner to determine whether there was any disability and to what extent it had reduced his earning capacity. In that case it was found that the learned Commissioner simply determined the nature and extent of disability that he did not give any finding with regard to the loss of earning capacity. Since there was non‑compliance of an important legal require ment, the case was remanded to the learned Commissioner for a fresh finding on the issue. The second case, which also was decided by my learned predecessor is reported as Haji Rehmanullah Abdul Sattar & Co. v. Gul Muhammad (1975 P L C 734). In this case the doctor had certified permanent partial disability of 40% but the assessment was made by the doctor without any physical test and merely on speculation, It was held that the findings of the Commissioner based on such opinion and evidence of the doctor were assailable in appeal and, accordingly, the award was set aside as having been passed on no evidence.

14. In the instant case, the learned Commissioner has taken note of the fact that the respondent was a labourer and was required to use his limbs to earn his livelihood and hence any limitation in the use of the limbs or the body would reduce his earning capacity. The view of the learned Commissioner, to some extent, finds support from the decision of the Dacca High Court in the case of A. K. M. Shamsuzzaman Khan v. Chairman, East Pakistan Road Transport, wherein it was observed that in every employment which the respondent was capable of undertaking at the time that he sustained the accident, he had suffered a loss in the earning capacity. However, I do not find myself in agreement with the view of the learned Commissioner for the reasons already indicated and have held that the respondent was not suffering from a permanent partial disablement but was suffering from a temporary partial disablement. I might point out that even according to Dr. Illyas, who had first examined and treated the respondent, he was fit for his duties with effect from 1st November, 1979, i.e. only after about 23 days of the accident. This would suggest that the respondent was fit to perform some types of manual work though not necessarily of a dock worker.

15. It next falls to be considered what quantum of compensation should be allowed to the respondent in such circumstances. I have already indicated that according to Dr. A.K. Memon, the loss of earning capacity of the respondent was 23 /o but according to Dr. Hussaini it is only 5%. Furthermore, according to certificate of Dr. Illyas the respondent was fit to perform his duties on 1st November, 1979. Apart from the fact that Dr. Hussaini is a highly‑qualified doctor with considerable experience, to cases under the Workmen's Compensation Act, he has examined the respondent, once on 7th July, M0 on the directions of the Commissioner, and again on 9th February, 1983 when he gave evidence before this Tribunal. It is true that the assessment of Dr. Hussaini is rather ad hoc and is not based on any tangible data or demonstrable grounds, but taking all the circumstances of the case into consideration I feel that his assessment is nearer to the correct mark. In cases such as the present one, wherein the inquiry is not specified in Schedule I, the percentage of loss of earning capacity caused by the injury can only be ascertained with reference to all the circumstances of the case. Taking all the circumstances of the case into consideration, I am of the view that the loss of earning capacity of the respondent would be 5%, which would work out to compensation of Rs. 1,050, to which should be added a sum of Rs.1,000 towards costs, including court‑fees, medical examination fees, expenses for calling witnesses and pleaders fees before the learned Commissioner and in this Tribunal making a total of Rs. 2,050.

16. Before closing this judgment, I would like to add that Mr. Haroon Ishaque had also attempted to argue that the respondent was a mere casual worker and hence was not entitled to compensation under the Act. Apart from the fact that this point does not appear to have been argued before the learned Commissioner as it does not find any place in the judgment of the learned Commissioner, it has been held by the Dacca High Court in the case of East Pakistan Water and Power Development Authority v. Mohar Ali Saiyal (1970 P LC 747) that the word "and" occurring in the definition of workman in section 2 (i) (n) of the Workmen's Compensation Act, 1936, was disjunctive and that mere casual nature of employment does not oust a person from the definition of workman but only when casual employment is coupled with its being for a purpose different from the employer's trade or business that it would exclude person from the definition of workman.

17. For the reasons discussed by me above, the appeal is allowed to the extent indicated above.

Appeal allowed,

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