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Appeal No. WCK‑2 of 1984, heard on 17th January, 1985.

‑---‑Ss. 10 & 30‑Respondent employer despite appearance before Commissioner not filing written statement‑Commissioner awarding compensation on basis of affidavit of workman and disablement certificate of Doctor ‑ Respondent appellant taking plea that petitioner workman was not his employee ‑ Appellate Tribunal relying upon Diary and record of Lower Court‑Injured workman appearing before Appellate Tribunal and found completely dis abled to work any more‑Order of Commissioner, in circumstances, maintained.

S. Safdar Hussain for Appellant.

Ibne Ayub for Respondent.

Date of hearing: 17th January, 1985.

This is an appeal against the order, dated 5th December, 1983 whereby the Commissioner for Workmen's Compensation and Authority under the Payment of Wages Act determined the claim of the respondent, Shah Nawaz son of Saeed Muhammad at Rs. 21,000 for a total disablement:

2. On 17th May, 1983 the respondent, Shah Nawaz filed a claim under section 10 of the Workmen's Compensation Act stating therein that he was a workman employed by Al‑Shahbaz Engineering Service i.e., the appellant and worked with the appellant establishment on the Site at Pakistan Steel, Bin Qasim, Karachi on 27th November, 1982 while he was working received an injury by a fall. He received injury, namely, fracture of spine. He was earning daily wages at Rs. 22 per day. He was over the age of 18 years. Notice of the accident was served on the appellant on 27th November, 1982. An effort was made for settlement by sending an application, dated 25th April, 1983 but due to the attitude of the appellants, it was not possible. He, therefore, filed the claim.

3. The appellant‑establishment did not file the written statement though they were served by a Bailiff on 11th July, 1983 personally. Earlier a registered notice was sent but it was returned by the Postal Office with an endorsement (KAFI RALASH KIA NAHEEN MALOOM HO SAKA) It was, therefore, subsequently that the Bailiff was sent personally and the Notice was served. According to the diary sheet on two occasions, the appellant was present. The appellant was present on 26th October, 1983 and the Diary shows that "the parties were present". Then, finally the appellant did not file the written statement and the Commissioner for the Workmen's Compensation finally decided the matter on 5th December, 1983 by awarding compensa tion at Rs. 21,000.

4. The learned Commissioner relied upon the affidavit filed by the respondent and by the disablement certificate, dated 24th April, 1983. In the certificate, the Doctor Saeed Ahmed Lt.‑Col. opined that there was a fracture of spine with paralysis and he was unable to do any work.

5. At the appellate stage the arguments of Mr. Safdar Hussain. Advocate, for the appellants were heard and the appellant was called personally but he remained absent on one or the other pretext and ultimately it was stated that he was suffering from Asthma and was hospitalized. The conduct of the appellant at the stage of appeal was that he mostly liked to avoid his appearance even though he was called. Mr. Safdar Hussain further argued that the respondent was never in the employment of the appellant at any stage and he never performed any duty for the appellant‑establishment. The injury being caused to him while he was working, is out of question and his claim is meaningless and preposterous. He denied that the notice was served on the appellant by the Bailiff.

6. The arguments of the learned counsel of the appellants indicate that they did not even know and they were unaware of the fact that one Shah Nawaz was working with the appellant and he sustained injury. This total denial was very strange and this Tribunal read the Diary and the record of the Louver Court. It appears from the record that on 11th July, 1983 the appellant was personally served by the Bailiff and once thereafter op 26th October, 1983 and 29th October, 1983 the appellant was personally present. The written statement was not filed by the appellant and it appears to have been deliberate exercise by the appellant. The Commis sioner for Workmen's Compensation after waiting for a long time ultimately awarded the claim at Rs. 21,000. The injured and disabled person appeared several times before this Tribunal and he was walking ors "baisakhies" and was completely disabled to work any more. I conclude that the appellant did not file the written statement deliberately and the claim was decided ex parte. This was fair and all in fitness as the aggrieved person was under complete disability. Therefore, the order of the‑ learned Commissioner for Workmen's Compensation is maintained and the appeal is accordingly dismissed.

7. The amount of Rs. 21,000 (rupees twenty‑one thousand only) deposited with the Commissioner for Workmen's Compensation and Authority under the Payment of Wages Act, East Division, Karachi, be paid to the respondent forthwith.

A. E.

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