ZIAULHAQ A. CHANNA, J.-This Letters Patent Appeal i9 directed against the judgment of a learned Single Judge of this Court, dated 5-10-70, whereby he upheld the order, dated 2-2-68, of the Commissioner for Workmen's Compensation, awarding compensation to the respondent.
2. The respondent is an Assistant Wireman in the P. W. R. and employed in Quetta Railway Division.
During the course of his employment with the P. W. R., the respondent met with an accident on 7- 10-64, suffering a, grievous injury to his" left thigh. He was admitted in the railway Hospital, Quetta, where he took treatment as an indoor patient until 10-12-1964 and again from 29-7-65 up to 30-10- 65, and as an outdoor patient from 24-5-05 to 28-7-65. Thereafter, he was kept under observation of the Divisional Medical Officer Railway from 31-10-65 to 6-12-65, when he was given a certificate by the said medical authority of 10 % disability. It appears that the respondent was not satisfied with the treatment adminis--tered to him In the Railway Hospital and accordingly got himself admitted on 11-12-64 In the C. M. H., Quetta, where he remained up to 30-12-64. According to the respondent, during the period of his stay in the C. M. H., he had to pay an amount of Rs. 752 for his treatment and in addition he incurred an expenditure of Rs. 16 for X-ray photo and had to pay a sum of Rs. 22 to the Radiologist as his fee.
3. The respondent made an application on 6-3-1967 to the Commissioner, Workmen's Compensation claiming compensation for 60% disability and in addition the amount of Rs. 788 spent by him on his treatment at the C. M. H., Quetta. The Commissioner, Workmen's Compensation awarded the respondent the said amount of Rs. 788 and in addition compensation on the basis of permanent incapacity to the extent of 20 % the total amount of compensation thus being Rs. 1908.
4. Against the said award of the Commissioner, Workmen's Compensation, the appellant filed an appeal, which was dismissed by a learned Single Judge of this Court, who was of the view that the respondent had rightly been awarded not only disability compensation but also the medical charges legitimately incurred by him on his treatment.
5. The appellant was represented in this appeal by Mr. Muftikharuddin Advocate while this respondent appeared in person. The only point raised before us by the learned counsel for the appellant was that the award of Medical charges to the respondent was the scope of the Workmen's Com--pensation Act, 1923 (hereinafter referred to as the Act). His contention was that the compensation which could be awarded to a workman under the Act for an injury or an occupational disease is limited to the amount determined under section 4 of the Act and that no workman was entitled under the Act to claim the expenses incurred by him for medical treatment, but if any payment was made to a workman during the period of his convalescence specifically towards his medical treatment, such payment wet not to be deducted from the amount of compensation to which the workman was ultimately found to be entitled.
6. Subsection (1) of section 3 of the Act lays down that 1n case of personal injury sustained by a workman by accident arising out of and in the course of his employment, his -employer to liable to pay compensation to him in accordance with the provisions of Chapter II of the said Act. Any claim for compensation or other charges must thus be founded on some provisions of Chapter 11 thereof and no compensation or expenditure incurred can be allowed or awarded which does not fall within the ambit of the Act.. Section 4 of the Act determines the mode in which the amount of compensation is to be computed. In case of permanent partial disablement resulting from an injury not specified in Schedule 1 and admittedly the injury sustained by the respondent in the instant case is not one specified to the said Schedule such percentage of the compensation payable is case of permanent total disablement as is proportionate to the loss of earning capacity permanently caused by the injury. The basis of calculation of the compensation in such cases thus i9 only the loss in the earning capacity resulting from the Injury and no other factor is to be included therein nor are medical expenses to be included therein. However, since the point in issue in the case involves the interpretation of proviso (a) to subsection (1) of the said section, it would be advantageous to produce it. It reads as under:- "(a) there shall be deducted from any lump sum or half monthly payment to which the workman is entitled the amount of any payment or allowance which the workman has received from the employer by way of compensation during the period of disablement prior to the receipt of such lump sum or of the first half-monthly payment, as the case may be except payments made to the worker during the period of his convalescence towards medical treatment."
7. A plain reading of the proviso indicates that the twin) requirements for entitling a workman to charges for medical treatment are: (1) that he should have received from the employer during the period of his disablement, prior to the receipt of compensation in lump sum or half-monthly payment, any payments or allowances, and such payments and allowances 't should have been made towards or for the purposes of medical treatment. In the instant case neither of these requirement have been fulfilled and the admitted position is that no payment was made to the respondent towards medical treatment.
8. In support of his view that the workman was entitled to recover expenses reasonably incurred by him on bit medical treatment, the learned Single Judge relied upon the case of Pakistan Beverage Company v. Ahmad Shah (PLD 1960 Kar. 331). The. (Acts of the reported case are that an employee of the Pakistan Beverage Company, who had sustained an injury in an accident, was paid during his period of convalescence, various sums aggregating Rs. 530-3-0. Out of this amount Rs. 100 was admittedly paid to him for fruit and its. 15 were paid to him as doctor's fee. The workman also claimed an amount of Rs. 197, which he established was incurred by him towards his treatment. The vouchers of payment made to the workman by the' employer did not show that the payments made to the workman were by way of salary. On these facts, Waheeduddin, J. considered that be was entitled to presume "that the employer paid the amount to question towards fruit and advance payment to the workman to meet other expenses" and accordingly hold that the workman was entitled to return out of this amount a sum of Rs. 216-3-7, which included the expenses of Rs. 197 towards his treatment. It will be seen that in the reported case the twin requirements of clause (a) of the proviso to section 4(1) of the Act, which we have already indicated were satisfied. This judgment in our humble opinion supports our view that a' workman is entitled to claim medical expenses only in those cases where during the course of his convalescence payments are made to him by the employer specifically towards such expenses.
9. The learned Single Judge sought support to his conclu--sions from the provisions of subsection
(5) of section 3 of the Act, which entitles a workman either to claim compensation under the .Act or to file a suit for damages, but bars resort to both modes. According to him, if a workman was entitled to claim in tort the reasonable expenses of his medical treatment for an jury sustained by him in the course of his employment, there is no reason why he should not be able to do so under the Act. With very great respect to the learned Judge, it may be pointed out that the summary procedure prescribed in the Act is applicable only in respect of claims for compensation p specifically provided under the Act but if a workman desires to claim damages in torts, he can do so only by means of a suit, where such claim, including the quantum of damages, could be more thoroughly examined.
10. In the result we allow the appeal to the extent that the respondent is not entitled to the sum of Rs. 908 spent by him on his medical treatment in the C. M. H., Quetta.
11. Before parting with the judgment, we would like to point out that the respondent had actually drawn, as far back as 1968, the full amount of compensation awarded to him by the Commissioner, Workmen's Compensation. Furthermore, the learned counsel appearing for the appellant contended that the appeal had been preferred mainly in order to have the law on the subject settled and to safeguard the appellant against similar claims from its other employers, but understandingly he could give no assurance Oat the appellant would not take any steps to recover from the respondent the amount of Rs. 908 to which be has been held by us not to be entitled. In view of these circumstances and the further facts that the respondent appears to have genuinely spent this amount on his treatment and produced vouchers to this effect and it would probably be s difficult for him to repay this amount, we expect that the appellant would not take any steps to recover the said amount from the respondent.