' The respondent, who was employed as a motor vehicle driven by the Karachi Cantonment Board, has been awarded the sum of Rs, 12,000 by the learned Commissioner, Workmen's Compensation, vide his order, dated 27th December, 1979, as compensation in respect of an injury sustained by him on the 6th May, 1977, while on duty. Additionally, he has been awarded a sum of Rs, 60, being the amount of the examination fees paid by him to Dr. Hag Nawaz Arbab.
2. Mr. Hamid Ali, the learned counsel for the appellant, has assailed the impugned order of the learned Commissioner on the grounds :-
(a) that the respondent is governed by the Pakistan Cantonment Servants Rules, 1954, hereinafter referred to as the said Rules, even in the matter of payment of compensation for injuries and the provisions of the Workmen's Compensation Act, 1923, hereinafter referred to as the said Act, are not applicable to him ;
(b) that even if it be held that the respondent is entitled to compensation under the said Act, the amount of Rs, 2,808, which he admittedly received as compensation under the said Rules, should be deducted from the amount to which he is considered to be entitled under the said Act ; and
(c) that as the respondent had claimed and established that his disability was only 30%, he was entitled on his admitted salary of Rs, 448 per month, to total compensation of Rs, 6,300 only.
3. Mr. Hamid Ali frankly conceded that there was no specific statutory provision barring the application of the provisions of the said Act to the employees of Cantonment Boards. His contention, however, was that since the said Rules were applicable to the respondent, and that further as these Rules make provision for payment of compensation to Cantonment servants who sustain any injury, the provisions of the said Act should be deemed to be impliedly repealed in respect of the employees of the Cantonment Boards. I regret that I see no substance in this contention. An enactment can be considered to have been impliedly repealed only in the presence of a subsequent legislation which is inconsistent therewith and the provisions whereof cannot be enforced in the presence of the earlier legislation. No doubt, rule 48 of the said Rules, provides for the grant of a special gratuity or compassionate allowance to any Cantonment Servant injured in the execution of his duties, but the said rule under which not only the determination of the amount of the special gratuity or compassionate allowance to be paid but even the decision whether the gratuity or allowance should at all be paid in any particular case rest solely in the discretion of the Cantonment Board and are further subject to the approval of the Government, cannot displace the provisions of the Workmen's Compensation Act, which is a beneficial piece of legislation, entitling a workman, who has sustained an injury in the course of his employment, to receive compensation according to the prescribed formula. The provisions of the said Rules and of the Act are totally different and are designed to cater for different requirements. The said Rules cannot be considered to be providing even reasonably adequate alternate relief or benefit. I am therefore, firmly of the view that employees of Cantonment Board cannot be denied compensation under the said Act merely because of the provisions in the Rules under the Cantonment Act for the payment of gratuity or compassionate allowance to injured employees. It may be pointed out that wherever the Legislature desires to exclude the application of a law to a particular class of persons or institutions, a specific provision to that effect is made, as in the ease of the provisions contained in sections 73 and 81 of the Provincial Employees" Social Security Ordinance, 1965.
4. There is, however, considerable force in the second contention of Mr. Hamid Ali that the amount of compensation or compassionate allowance which the respondent received from the Cantonment Board under the said Rules, be deducted from the amount of compensation to which he is considered to be entitled unde said the Act. It is an admitted position that the respondent had received a sum of Rs, 2,808, as compassionate allowance under the said Rules. It was urged by Mr. Ch. Sarif, the learned representative for the respondent, that as this amount was granted to the respondent by way of gratuity or compassionate allowance, it cannot be considered to be payment towards compensation to which the respondent was entitled under the said Act, and hence this amount should not be deducted from the compensation to which the respondent was entitled. It is clear from a bare perusal of rule 48 that gratuity or compassionate allowance thereunder is payable only to an employee of the Cantonment Board who has sustained an injury in the execution of his duties, The amount of Rs, 2,808, thus, which was paid to the respondent, under rule 48, was clearly by way of compensation for injuries sustained by him. This amount, therefore, has to be deducted from the amount of compensation to which the respondent is entitled under the said Act.
5. This brings me to a consideration of the amount of compensation to which the respondent is entitled under the said Act. The respondent himself, in his application under section 10 of the said Act, made to the learned Commissioner, has claimed total compensation of Rs, 6,360, on the basis of 30% disability, as per certificate of Dr. Haq Nawaz. The learned Commissioner, however, went much beyond the claim made by the respondent and awarded him compensation of Rs, 12.000, on the basis of 100% disability, as he has taken the view that the respondent was totally incapacitated from performing duties as motor vehicle driver on account of the injury sustained by him. For this view, he has relied, firstly, upon certain statement made by Dr. Haq Nawaz, and secondly the certificate issued by a Doctor of the Cantonment General Hospital, Karachi. Now as regards the second piece of evidence, it was clearly inadmissible as neither the Doctor, who issued the certificate, nor any other person acquainted with his handwriting or signature, was examined. As regards the evidence of Dr. Haq Nawaz, he has clearly stated in his evidence that the respondent's earning capacity, after the injury, had been reduced by 30%. However, he has added that by reason of the injury sustained by him, he is totally incapacitated to drive vehicles. The injury suffered by the respondent was compound fracture of the right leg which had mal-united, resulting in the locking of the right knee joint. This injury may have incapacitated the respondent from driving a motor vehicle, though there are cases where persons have found it possible to drive vehicles with disabled lower limbs, but this fact by itself would not entitle the respondent to payment of compensation on the basis of 100% disability, as he has no been incapacitated from gainfully following another profession. He is, thus, entitled to compensation strictly in accordance with the provisions of Schedule III to the said Act. According to that Schedule, his disability is to be construed at 30% and hence the total amount of compensation to which the respondent is entitled, on the basis of his admitted emoluments of Rs, 448 per month, would be Rs, 6,300, and in addition an amount of Rs, 60, which he paid as fees to Dr. Haq Nawaz. From this amount, a sum of Rs, 2,808, which has already been received by him from the Cantonment Board as gratuity or compassionate allowance, has to be deducted, leaving a balance of Rs, 3,552. I would accordingly direct that the said amount of Rs, 3,552 be paid to the respondent instead of Rs, 12,000, as directed by the learned Commissioner.
6. Before concluding, I would like to record the statement made by Mr. Hamid Ali that the Cantonment Board had offered an alternate job to the respondent but he refused to accept the same. Mr. Hamid Ali stated that the said job or other job of like nature could still be made available to the respondent, if he approaches the Cantonment Board in this behalf.