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Appeal No. LHR‑20 of 19811Pb., decided on 19th October, 1982.
Ikram‑ul‑Haq for Appellant.
Ch. Sadiq Muhammad Warraich for Respondent.
Date of hearing: 9th October, 1982.
In this appeal the decision, dated 12th September, 1981 passed by the learned Commissioner for Workmen's Compensation has been challenged, whereby an amount of Rs. 10,343 was awarded as compensation to the res pondent for the loss of his 75% earning capacity due to un-united fracture of the elbow joint caused in an accident while the respondent was on duty, The amount of Rs. 10,343 was deposited by the appellant with the learned Commissioner under the Workmen's Compensation and was received by the respondent under protest. The petition brought by the respondent was con tested by the appellant on the ground that since the respondent had with drawn the amount of compensation, he could not challenge the compensa tion fixed and deposited was adequate. In appeal one more objection has been raised that the doctor who fixed the percentage of loss of earning capacity at 75% was not examined by the learned Commissioner.
2. Answer to the first objection is that the respondent did not accept the compensation fixed and deposited by the appellant, but withdrew it under protest. So he was not estopped from challenging the quantum of compensation. The respondent is a driver and can work as such if his both hands and legs can function unrestricted. Since the elbow-joint was fractured in the accident and has not united, he cannot use the said arm. It is unsafe to control the steering permanently with one hand. So he now cannot work as driver for this reason his services have also been terminated by the appellant. By terminating his services the appellant has accepted the disability as permanent and percentage of disability as 100%. The doctor appears to have fixed the disability as 75 % because the respondent can do some other work. In these circumstances the examination of the doctor was not necessary. Moreover, at the time of the admission of the medical report of the doctor no objection was raised that the doctor should be examined. The learned Commissioner, therefore, rightly fixed the compensation a Rs. 15,750 and after deducting the half‑monthly pay and the, amount already received by the respondent, rightly directed the appellant to deposit Rs. 4,223.54 more. There is no force in the appeal, which is dismissed.
M. I.
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