1. Through this appeal under Section 64 of the Provincial Employees Social Security Ordinance, 1965; the appellants have assailed the judgment dated 3.2.2005 passed by 3rd Labour Court Balochistan Social Security Court at Hub whereby the appeal filed under Sections 55 and 59 of the Provincial Employees Social Security Ordinance, 1965 was accepted and the institution was directed to make payment of Rs, 3,90,351/- to the respondent for medical expenses incurred on its employees.
2. Brief facts giving rise to this appeal are that the respondent filed a complaint under Section 57 of the Ordinance praying for reimbursement of Rs, 3,90,351/- incurred on the treatment of nine workers of the company who after performing their duties were waiting for a Bus outside the factory premises, when a Taxi ran over them; causing injuries to them and one of them died at the spot. On 17.4.1998 the injured persons were taking to Bentwa Anees Hospital and Agha Khan Hospital Karachi for treatment. The respondent paid the said amount of Rs, 3,90,351/- as medical expenses and requested the Appellant No, 1 i,e, Balochistan Employees Social Security Institution through its Commissioner Labour Complex (herein after referred to as the institution) for reimbursement of the amount. The institution was refused to make payment of the same. The respondent filed an appeal under the Ordinance before the Commissioner Balochistan Employees Social Security Institution who after hearing the parties, rejected the complaint on the ground that the incident had taken place outside the factory premises vide order dated 5.7.2000. Being aggrieved from the same, the respondent filed a complaint before the Presiding Officer 3rd Labour Court Balcohistan Social Security Court at Hub which was accepted vide order dated 12.9.2001.
3. Being aggrieved from the same, the appellants filed an appeal under Section 64 of the 'Ordinance before this Court which was registered as Civil. Miscellaneous Appeal No, 19/2001, the same was partly accepted by this Court and the matter was remanded to the Commissioner Balochistan Employees Social Security Institution with the directions that opportunity be given to both the parties to lead evidence who rejected the claim of the respondent vide order dated 31.4.2004.
4. Thereafter the respondents filed an appeal before the 3rd Labour Court Balochistan Social Security Court at Hub and the same was accepted vide impugned judgment dated 3.2.2005. Hence this appeal.
5. I have heard Mr. Mushtaq Ahmed Anjum, Advocate for the appellants and Mr. S.M. Yaqoob, Advocate for the respondent.
6. Mr. Mushtaq Ahmed Anjum, learned counsel for the appellants contended that the Labour Court erred in the law, accepting the appeal filed by the respondent by reversing the well reasoned Judgment passed by the Commissioner Balochistan Employees Social Security Institution and further stated that since the incident had occurred outside the factory premises. Thus under the ordinance the respondents are not entitled for any compensation. Mr. S. M. Yaqoob, learned counsel for the respondents contended that after remand of the case by this Court, the parties were directed to lead evidence but the appellants did not cross examine the representative of the company who filed an affidavit which has not been rebutted and the claim as setup in the counter affidavit has not been disputed and further stated that the incident though happened outside the company premises under the theory of notional extension the respondent was entitled to the same. Learned counsel further argued that the workers were also compensated by the respondent but only the medical expenses have been claimed and further stated that the institution had a dispensary at Hub having no facilities. Thus on the approval of Senior Medical Officer of the Institution the injured were shifted to Bentwa Anees Hospital and Agha Khan Hospital Karachi, whereby the medical expenses were paid by the respondent. Thus the company is entitled for reimbursement of an amount of Rs, 3,90,351/-.
7. With the assistance of the learned counsel for the parties, I have perused the record of the case minutely.
8. Adverting to the contention of Mr. Mushtaq Ahmed Anjum, learned counsel for the appellants that though the incident took place outside the factory premises does not fall within the definition of the Ordinance as envisaged under Section 2 sub-section (10) of the. Ordinance. It may be mentioned here that soonafter their duties the employees of the factory were waiting for a bus outside the factory premises and in the meanwhile, a taxi over ran the employees wherein one person died on the spot and nine received injuries. It may be pointed out that said question has been finally dealt- with by the learned Appellate Court holding therein that at the relevant time the workers were not independent and not connected with private activities and after the working hours, they were waiting for a bus. In this regard, the theory of notional extension is very much attracted as pick and drop of the workers also falls within the service hours. Admittedly the injured persons were waiting for a bus after working hours to go their homes. Thus the theory of notional extension can be extended as soonafter the company hours the injured persons waiting for transport and when they met with the said unfortunate accident. Admittedly at the time when the incident took place they were though on a public road but not standing for another purpose and it was very much during course of employment waiting for conveyance after working hours.
9. Coming to the contention of Mr. S.M. Yaqoob, learned counsel for the respondent that there is yet another factor which makes the company entitled for reimbursement of medical expenses.
10. Admittedly a dispensary is established by the institution but there was no facility for curing such fatal accidents. Therefore, the injured workers were shifted soonafter the incident on the recommendations and approval of Senior Medical Officer present in the institution to Bentwa Anees Hospital and Agha Khan Hospital Karachi. In this regard reference may be made to the affidavit of Mr. Muhammad Ali Siddiqui, Personnel Manager of the Company which is very clear and after remand of the case by this Court to the Commissioner Balochistan Employees Social Security, no request was made for his cross examination. It is clearly mentioned in affidavit that soonafter the incident the injured were rushed to Ghulam Qadir Hospital and thereafter they were admitted in Bentwa Anees Hospital and Agha Khan Hospital Karachi as the Government Hospitals had no facility for treatment of such type of injured persons and besides, a letter was sent to the Senior Medical Officer of the area for referring the ease of the injured to the said institution. In this regard a letter to Senior Medical Officer was also written and copy of the same was also sent to the institution. The said letter was also received by the Commissioner Balochistan Employees Social Security and by the company. It is worth mentioning that affidavit submitted by Mr. Muhammad Ali Personnel Manager reveals that the injured persons were waiting for the company transport to go their homes when they met with the unfortunate accident. Thus in the case in hand the theory of national extension applies as the injured were waiting for a bus which was authorized by the company.
11. Since the affidavit has not been disputed and the facts given in the affidavit are presumed to be accepted as the same were not disputed and no request was made for calling of the said witness for cross examination by the institution. Besides, there is another factor which makes the respondent entitled for reimbursement of the amount as during the course of treatment of injured persons a letter was written to the institution for reimbursement of the medical expenses incurred on the injured persons but no reply was received so far and it was deemed to have been approved/sanctioned.
12. Thus in view of the above discussion and findings given by the 3rd Labour Court Balochistan Social Security Court at Hub based on cogent and sound reasons warranting no interference by this Court, therefore, the appeal being devoid of merits is dismissed.
13. Parties are left to bear their own costs.