Find a Lawyer

Appeal No. WCK-2 of 1983, decided on 13^th September, 1983

-- S. 30-Appeal-Assessment of evidence with regard to injuries resulting in incapacity - Purely a question of - fact-Cannot be agitated in appeal.

1980 P L C 856 rel.

-- S. 12 (1) & (2) - Compensation - Liability of principal and contractor-Mills in order to carry on its trade and business employ ing contractor-Workman sustaining injuries during course of his -employment as a labourer employed by contractor to carry out terms and conditions of his contract-Principal viz, Mills, in circumstances, held, liable to pay compensation and would be entitled to be identi fied by contractor.

1975 P L C 630 and 1978 P L C 409 rel.

1. C. P. Employees Front v. 1. C. P. Ltd. 1975 P L C 584 distinguished.

Shaukat Ali A Nanji for Appellant.

Abdul Kadir for Respondent.

Date of hearing : 25th August, 1983

This appeal under section 30 of the Workmen's Compensation Act, 1923, is directed against the order, dated 5th March, 1983, passed by the Commissioner, Workmen's Compensation awarding the respondent work man Rs. 6,363 as the compensation from the appellant No. 1 for the injuries sustained by him as a result of an accident arising out of and during the course of his employment.

2. The facts leading up to this appeal briefly stated are' that the appellant No. 1, Bengal Oil Mills Ltd., in order to carry on its order and business employed the services of a Contractor, the appellant No. 2 Sultan Zareen. Sultan Zareen amongst others employed the respondent Zardullah Khan as a labourer to carry out the terms and conditions of his contrast with the appellant No. 1. During the course of his employment the respondent while loading and unloading the bag in and out of the truck suffered injuries, one on his left foot and the other on his back damaging his spinal card on account of a fall of bag weighing three and a half Maund on him. The appellant No. 2, Sultan Zareen referred him to the Civil Hospital, Karachi by a letter, dated 2nd December, 1979, on the very date the respondent suffered the injuries on account of the accident. He was treated in the hospital, vide the Certificate of Dr. Syed Sajjad Hussain which is on the record. He was subsequently referred to the same hospital for assessment of his permanent capacity which was estimated as partial at 30%, vide- the certificate of Dr. A. W. Samdani in whose ward he had been treated disclosing two injuries, one on its left foot and the other on his back damaging the spinal card. Thereafter, he was examined by the Company's Doctor, vide the certificate of Dr. Chapra which has disclosed only one injury on his foot showing the assessment of partial permanent incapacity to the extent of 10% only. The learned Commissioner recorded the evidence including that of the two Doctors, Dr. A. W: Samdani well as Dr. Chapra, and relying on the evidence of Dr. Samdani allowed the compensation as stated above, vide his order above-mentioned. Aggrie ved by this. order, the appellants have come up in this appeal.

3. I have perused the material evidence recorded by the learned Com missioner and have also heard the learned representative, Mr. Shaukat Ali Nanji for the appellants and Mr. Abdul Qadir, Advocate, for the respon dent. Mr. Shaukat Ali Nanji for the appellants has raised two-fold contention ; firstly, that the respondent suffered no injury at all, and secondly, that if at all be suffered any injury, he would be entitled to compensation, from the appellant, No. 2 Sultan Zareen, the Contractor and not from the appellant, No. 1, the Bengal Oil Mills, as the insurance was taken by the appellant No. 2 and not the appellant No. 1.

4. As regards the first contention, it is a common ground that 4he respondent was engaged to do the work on daily wages by the contractor, Sultan Zareen, the appellant No. 2 for running the trade and business of the Bengal Oil Mills, the appellant No. 1 to carry out his contract with the mills. There is also no doubt that the respondent suffered the injuries during the course of his employment as a labourer, though the evidence of Dr. Samdani discloses two injuries, one on his left foot and the other on his back damaging his spinal card, whereas the evidence of Dr. Chapra, who is the Medical Officer of the appellant mills, the appellant No. 1 discloses only one injury i. e., on his left foot. The evidence on record shows that the respondent was referred to Civil Hospital, Karachi, on the very date of the accident, 2nd December, 1979, by the letter of appellant No. 2 Sultan Zareen, where he was treated and was ultimately found having two injuries above-named resulting in the assessment of partial permanent incapacity to the extent of 30%. The evidence of Dr. Chapra who is the Medical Officer of the Oil Mills discloses that the respondent had only one injury on his left foot with a partial permanent incapacity of only 10%. What I find from the reasons assigned by the learned Commissioner in the impugned order that he rightly preferred the evidence of Dr. Samdani to that of Dr. Chapra accepting the assessment to the extent of partial permanent incapacity of 30%. However, the assessment of the evidence with regard to the injuries resulting in incapacity is purely I a question of fact which cannot be agitated in the appeal under section 301 of the Workmen's Compensation Act, 1923. Reliance in that respect has been placed on the decision of this Tribunal, reported as 1980 P L C 836 which is on all fours in the facts and the circumstances of the present case.

5. As regards the second contention, the learned representative for the respondent has contended that under section 12 of the Workmen's Compensation Act, the respondent was entitled to compensation from the appellant No. 1 Oil Mills and not from the Contractor, Sultant Zareen, appellant No. 2 from whom the principal the Oil Mills shall be entitled be indemnified. The plain reading of clauses (1) and (2) of section 12 Workmen's Compensation Act would make it clear that the principal all be liable to pay to any workman employed in the execution of the any compensation on which he would have been liable to pay if the 3rktnan had been immediately employed by him, and that the principal 1,111 be entitled to be indemnified by the contractor. 1t would, therefore, Proper that the appellant No. 1 the Oil Mills, the principal would be liable ' pay compensation to the workman, the respondent, Zardullab Khan, employed by the contractor, Sultan Zareen, the appellant No. 2, and that the appellant No. I would by entitled to be indemnified by the appellant No. 2. Reference in this respect is also invited to the decisions of this Tribunal, reported as 1975 P L C 630 and 1978 P L C 409 which are applicable on all fours to the facts and the circumstances of the present case. The decision cited by Mr. Shaukat Ali Nanji, the learned representa tive for the appellant No. l in support of his contention to the effect that the contractor would be liable and not the principal, reported in 1975 P L C 584 is clearly distinguishable as the facts and the circumstances of the case which was the subject-mater of that decision on materially different from the present case inasmuch as in that case the contract that had been given to the contractor was not the part of the trade or business of the principal as the factory which was to carry on the trade or business of the principal was still under construction and the labourer was employed on )he work of construction of the factory during which work, he suffered an accident. 'It was not at all during the course of the trade or business of the principal that the accident to the labourer occured. Accordingly this decision relied on by Mr. Shaukat Ali Nanji for the appellants is not applicable to the facts and the circumstances of the present case. I would, therefore, find that the appellant No. 1 the principal is liable to pay com pensation to the respondent Zardullah Khan and that the appellant No, 2, the Contractor Sultan Zareen, would be liable to indemnify the principal, the appellant No. I in appropriate proceedings if at all arising between them irrespective of any insurance taken by the appellant No. 2.

6. Accordingly, I find no substance in any of the contentions raised on behalf of the appellants and the impugned order does not call for any interference. The appeal is, there fore dismissed.

A. E. Appeal dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.