DECISION These are two appeals under section 30 of the Workmen's Compensation Act against two orders of the Commissioner awarding compensation in two separate cases. These appeals have been consolidated as common questions of law are involved.
2. The respondents were in the service of the appellant. They sustained injuries by accident arising out and in the course of their employment. They claimed compensation and approached the Commissioner. The claim was resisted. The learned Commissioner after recording the evidence allowed the claims of the respondents. Aggrieved by this the present appeals had been filed.
3. The learned counsel for the appellant raised two legal objections. The first objection taken by him is that the Commissioner had recorded the evidence of a witness before he was notified as Commissioner under the Workmen's Compensation Act. There is no doubt that this irregularity was committed and objection to that effect was also taken before the Commissioner but after the notification appointing the officer as Commissioner was issued the parties gave a statement allowing the evidence already recorded to be treated as evidence. This is clear, not only from the comments which were called from the Commissioner but there is also an order to that effect on the order- sheet of the record maintained by the Commissioner. Thus the appellant cannot be permitted to agitate the objection at this stage. The evidence was admitted by the consent of the parties and to this no exception can be taken. ''x 4. The second plea which has beea taken is that although the Commissioner had come to the conclusion that the respondent had sufferred permanent partial disability but no finding was given as to whether the disability had reduced his earning capacity.
There is considerable force in this contention. According to law it is the duty of the Commissioner to determine whether there was any disability and to what extent it had reduced the earning capacity. The learned Commissioner in the present case had simply determined the nature and extent of disability but he did not give any finding with regard to the loss of earning capacity.
Consequently there has been non-compliance with an important legal requirement. Since .the orders suffer from serious legal infirmity they are bad in law and cannot be supported. In this view I am fortified by the decision of the High Court of Sind & Baluchistan reported in 1973 PLC 324. A 5. In the result I allow the appeal and set aside the orders passed by the! Commissioner and remand both the cases to him for determination of theL extent of the loss of earning capacity and dispose of the cases accordingly. In case the parties desire to lead additional evidence they may be allowed an] opportunity to do so. 1975 PLC 710 [Labour Appellate Tribunal Sind] Preterit l Ghulam Rasool Shaikh, Appellate Tribunal GOKAL SHIPPING AND TRADING CORPORATION Ltd., KARACHI versus AZHAR KHAN , decided on 14th July 1975. (a) Workmen's Compensation Act (VIH of 1923)-- ------ S. 21(1), proviso -- Ship owned by American Company registered in Panama chartered by a Company of London--Shipping company at . Karachi as "agent" of chartering company of London employing crew on board--Commissioner Karachi, in circumstances, held, rightly exercised jurisdiction in matter of claim of workman working on board such ship against Shipping Company of Karachi, [pp. 712, 713]A & C (b) Workmen's Compensation Act (VHI of 1923)-- ----- S. 30--Pleadings on fact-- Plea not taken in pleadings--Not to be raised at later stage, [p. 713]B A. G. Muhammad Ali for Appellant. S'. A. Ghana for Respondent. Date of hearing : 4th July 1975. Decision This appeal has been filed under section 30 of the Workmen's' Compensation Act to assail the order of the Commissioner who had awarded a sum of Rs. 10,078 as compensation to the respondent for having sustained some injury.
2. The respondent was engaged as a cook on board of the vessel 'Five Stars', on 14th of June 1973 before sailing from Karachi. The ship was registered in Panama and was in the possession and control of Gulf Shipping Lines Limited, London. The appellants were their 'agents' having office at Karachi. The ship was about to approach Banu Abbass, a port in Iran, when the respondent sustained injuries by opening a freezer. He was treated on board as well as at Banu Abbass at the expense of the appellant. Subsequently he was flown to Pakistan and received further treatment at the expense of the appellant. Finally he was given Rs. 500 by the appellant in full and final settlement of the claim. The respondent, however, obtained a certificate from Dr. A. K.
Memon to the effect that he had suffered permanent partial disability to the extent of 50% and called upon the appellant 7 to pay compensation. Since the appellant declined to pay the respondent approached the Commissioner under the Workmen's Compensation Act.
3. The appellant resisted the claim and filed the written statement consisting of five paras The grounds for opposing the claim are contained in paras. 1 and 3 of the written statement which read as under :-- "(1) The opponent above-named begs to submit t^at all and several of the allegations and averments stipulated in the application are expressly and particularly denied in view of the fact that the applicant was never in the employment of the opponent, lt is respectfully submitted that the vessel in question m.v. "Five Stars" is a foreign flag vessel registered in Panama and that the Opponent-Company was the Steamer/Shipping Agent of such ^vessel. The opponent- Company had never engaged or employed the applicant in any capacity whatsoever. It is further submitted that according to law, custom and practice whenever any crew members are required by a vessel, the Master has to request the Shipping Master of the Government of Pakistan to supply such crew members. Thereafter Articles of Agreement have to be entered 'Into and signed by the Master of a vessel, the Shipping Master and the concerned crew members whereafter various immigration and other legal formalities have to be complied with *y the crew members. In these circumstances, it is submitted that the applicant was never employed by the opponent-Company and the applicant is put to strict proof of his allegations that he was employed by the Opponent- Company or that he suffered the alleged injury out of and in the course of his alleged employment with the opponent-Company. It is respectfully submitted that on the request of the Master of the vessel in question and only on the account and at the expense of such vessel, the opponent- Company had the applicant treated for minor and temporary injury. Furthermore, again at the request of the Master and for and on behalf of and on the account of the said vessel a sum of Rs.
500 was paid to the applicant in full and final settlement and as compensation for the minor and temporary hand injury. The applicant has duly acknowledged receiving such sum but despite such payment he has instituted these false and frivolous proceedings against the opponent-Company which has no connection with the applicant." On the basis of the aforesaid pleadings the Commissioner framed only one issue by the consent of the parties. The issue reads as under :-- "Whether the applicant was a workman in the company of the opponent and employed by the opponent?" No* other issue was either framed or sought to be framed at any time. Evidence was led by both the parties. On the assessment of the evidence the learned Commissioner came to the conclusion that the respondent was in the employment of the appellant and, therefore, liable to pay compensation. Rs. 10,000 were awarded as compensation on the basis of the monthly wages at Rs. 600 in addition to Rs. 78- as medical charges, witnesses bhatta, pleader's fee and court-fee The total amount came to Rs. 10,678. Aggrieved by this present appeal had been filed.
4. The first ground taken by the learned counsel for the appellant is that the Commissioner had no jurisdiction to entertain the claim in viqw of the provisions of section 21(1) of the Workmen's Compensation Act.
This provision of law reads as under :-- "21(1) Where any matter is under this Act to be done by or before a Commissioner, the same shall, subject to the provisions of this Act and to any rules made hereunder, be done by or before a Commissioner for the local area in which the accident took place which resulted in the injury : Provided that, where the workman is the master of a ship or a seaman, any such matter may be done by or before a Commissioner for the local area in which the owner or agent of the ship resides or carries on business." In the present case the aforesaid proviso is applicable. According to this proviso the jurisdiction to entertain a claim by the Commissioner depends upon the place where the owner or agent of the ship resides or carries on business. It is an adm tted position that the appellants are 'agent' of the Gulf Shipping Lines Limited, London. It is also an admitted position that the appellant carries on business at Karachi. The point of dispute is as to whether the Gulf Shipping Lines Ltd., are the ^owners of the ship. In this connection it was contended by the learned counsel for the appellant that the ship belonged to an American company registered in Panama while it was chartered by Gulf Shipping Lines Ltd., and, therefore, the later firm could not be treated to be the owner. I am unable to entertain this plea for the simple reason that no such plea was taken in the written statement as is clear from the two paras, of the written statement reproduced above It is a settled rule of pleadings that if a plea is not taken in the pleadings it cannot be allowed to be raised at a later stage. It may be said that rule of pleadings is not strictly applicable to the pleadings but when a question of fact is agitated and relied upon it must be specifically pleaded in order to afford the other party an opportunity to accept or reject it by adducing proper evidence. Indeed, the facts regarding the plea were brought on record in the evidence of the witnesses examined on behalf of the appellant but any evidence contrary to the pleadings or beyond the pleadings cannot be looked into nor it can form the basis of the case which may be attempted to be set up.
5. Apart from this, the documentary evidence produced by the appellant refutes the plea. The important document in this respect is Lxh. P/6, which is an agreement for foreign going ships between the appellant, the Shipping Master and the crows. In this the appellants were shown under the head "Registered Managing Owner or Manager".
Such an agreement is necessary under the Merchant Shipping Act, 1923. It had been claimed by the respondent that he was engaged by the appellant and sent to serve on the board. This statement was accepted by the learned Commissioner and in appeal it cannot be assailed as appeal lies only against the question of law and not of fact. It is also an admitted position that all the expenses of treatment were borne up by the appellant. The respondent was also flown to Karachi at the expense of the appellant. Finally an amount of Rs., 500 was paid by the appellant as wages or compensation as the case may be. There is nothing on record to indicate that the appellant had asked the respondent to approach the person in whose name the ship was registered in Panama. It is, therefore, apparent that the principal of the appellant were treated as the owner of the ship. Lastly, it may be added that chartering of the ship falls in two categories. The first category is when ship is chartered by the owner of the goods for their import or export. The second category is that the ship, is chartered for the transportation of the goods of customers for making profit. So even if it is presumed that the principal of the appellant had chartered ship they would, in my opinion, fall within the second category. In this I am supported by the very name of the company of the appellant's principal. The ship was, therefore, in their possession and complete control. It is established by the material on record that they were engaging the crew for the ship and paying salary to them. There is nothing on record to show that the alleged owners had any say in the engagement of the crews or they were making any payment by way of salary or otherwise to them. It was, however, alleged that the appellant or their principal had no connection with the owner or control of the ship. The evidence led to that effect cannot be accepted in view of Exh. P/6 and the reasons already slated. At any rate the principal of the appellant v ere de facto owners by fiction of law. Admittedly the appellants were thel agents of Gulf Shipping Lines. Consequently the Commissioner hadf jurisdiction to entertain the claim.
6. It was next urged by the learned counsel for the appellant that the respondent was engaged in violation of sections 38, 39 and 80 of the Merchants Shipping Act as no agreement with regard to the respondent was executed. This may be so but the appellant thereby cannot escape the liability. According to law the appellants were required to execute the agreement but they themselves are guilty of violation and they cannot plead the same violation in defence. The violation is punishable under the Act and it does not exonerate the appellant from the liability to pay compensation under the Workmen's Compensation Act.
7. Lastly, it was urged that loss of earning capacity was not properly determined by the learned Commissioner. There is no force in this contention as the Commissioner had based his finding on the evidence of Dr. A. K. Memon and it being a question of fact cannot be challenged ia appeal. Moreover, no issue to that effect was framed as already indicated. A grievance was made that the Commissioner did not send the respondent to be examined by another doctor. The application was made on 7-12-1974 and it was rejected by order dated 16-12- 1974. I have perused the order and it cannot be said that the discretion had been improperly exercised. Cogent reasons have been given and 1 see no reason to come to a different conclusion.
8. In the result the appeal is dismissed.